Don’t Eliminate One of America’s Best Spy Tools

A t a House Intelligence Committee hearing last week, members questioned FBI director Christopher Wray about reports that agents had searched for classified data on a member of Congress. Then came a twist: That unnamed member, Representative Darin LaHood (R., Ill.) said, was him.

The searches involved powers granted to the FBI under Section 702 of the Foreign Intelligence Surveillance Act of 1978, known as FISA. And the latest revelations came at a particularly inopportune time for the government: Section 702 is set to expire on December 31 unless Congress reauthorizes it.

That impending “sunset” has intelligence leaders worried, with good reason. Enacted in 2008, Section 702 updated intelligence powers for a digital age in which communications move seamlessly across national boundaries. It allows the government to monitor targets located abroad by gathering their data from communications infrastructure located in the United States. That sounds counterintuitive, but it works. Because of America’s central place in global digital networks, internet-backbone cables and corporate servers in the United States often hold the data of foreign targets.

Indeed, since its enactment, Section 702 has become one of the most important weapons in the government’s intelligence-gathering arsenal. Agencies use its powers to monitor more than 200,000 overseas foreign targets each year, reaping “irreplaceable” intelligence about America’s adversaries. Intelligence gathered under Section 702 has uncovered terrorist attacks, including a 2009 plot to bomb New York’s subways, and it provides the government with insight on many other national-security threats.

Yet Congress may lack the votes to renew Section 702 this year. Many Republicans were already spitting mad at the national-security state, for reasons ranging from surveillance of Trump aide Carter Page to the Department of Homeland Security’s ill-fated Disinformation Governance Board. Without broad support among Republicans, House speaker Kevin McCarthy may struggle to move a reauthorization bill. And even with McCarthy’s backing, any vote will be close.

What should Republicans do about Section 702? One approach would be to shoot the hostage: kill Section 702 to punish agencies for misconduct involving other parts of FISA, misguided interventions in political and social debates, and other missteps.

That approach would bring with it high costs and few benefits. It would do nothing to fix the parts of FISA that, unlike Section 702, can be used to target Americans. The powers used on Carter Page have no sunset and will continue unchanged even if Section 702 expires. The fleeting leverage that this year’s deadline gives Republicans to demand reforms would vanish.

Most importantly, allowing Section 702 to lapse would harm our efforts to monitor our most dangerous foreign adversary: the People’s Republic of China. General Paul Nakasone, who leads the National Security Agency, recently confirmed for the first time that Section 702 is used to collect intelligence on China, which he rightly called “America’s primary geopolitical challenge.” There are many aspects of the China challenge for which intelligence gleaned using Section 702 could hypothetically be valuable: spying on the U.S. homeland, stealing our trade secrets and personal data, building new weapons to attack U.S. forces in the Western Pacific, harassing people in America who criticize Communist oppression, and more. (Perhaps even spy balloons.) Make no mistake: The Chinese Communist Party would be delighted if Section 702 expired. So would international terrorists, Russia, Iran, and other foreign foes who rightly fear our intelligence services.

That doesn’t mean that to foil China, Republicans must ignore their concerns about FISA. But it does mean that they should use this year’s sunset as a chance to reform FISA to protect Americans without taking the pressure off of China and other foreign adversaries.

The main goal should be shoring up the firewall between intelligence and politics. The FBI’s internal rules already require special procedures in cases known as “Sensitive Investigative Matters,” which involve domestic public officials or political candidates, religious organizations, journalists, and people involved in other sensitive pursuits. FISA, however, does not contain any special safeguards against attempts to surveil people in those categories. Congress could and should amend FISA to require such safeguards.

Congress should also address findings that FBI agents searched data initially collected from foreign targets under Section 702 for “the name of a local political party” and, as we’ve seen, “a U.S. Congressman.” While such searches are not necessarily nefarious — they may be intended, for example, to protect an American victim of espionage or hacking by a foreign state — they should be subject to heightened safeguards. Congress could require, for example, that database searches for information about political parties, candidates, or elected officials be personally approved in writing by the head of the relevant agency and promptly reported to congressional leaders.

Lawmakers should also help the Foreign Intelligence Surveillance Court, which approves government applications to conduct FISA surveillance, to better scrutinize the information it receives from the government. Congress could require the court, which usually hears only from the government, to appoint an amicus curiae (“friend of the court”) more often and empower him or her to scrutinize the government’s facts, not just its legal arguments. In the most sensitive cases, Congress could also require the Justice Department to double-check FISA applications against its files to ensure that no salient facts were left out.

Finally, when FISA surveillance collects information about Americans, the law should better protect that information. Section 702 can only be used to target foreigners, but when an American communicates with a foreign target, the American’s messages will be collected, too. That may sound ominous, but it is often a good thing: Discovering that a person in the United States corresponds with a foreign terrorist can save American lives.

Experience shows, however, that Americans caught up in national-security surveillance are vulnerable to leaks and other political abuses. Former national-security adviser Mike Flynn was fired and ultimately prosecuted after someone leaked information about his intercepted conversations with a foreign diplomat. Congress could deter future leaks by enacting a specific criminal prohibition on disclosing information about an American obtained from intelligence intercepts.

Republicans’ goals here should be simple: protecting Americans while allowing the government to stay tough on China and other adversaries. And renewing Section 702 while pursuing other FISA reforms is the best way to do both.