Reauthorize Section 702

OPINION:

Here we go again. Section 702 of the Foreign Intelligence Surveillance Act will expire April 30 unless Congress reauthorizes it.

Why should we care? Because FISA is one of the government’s primary tools to protect us from international spies and terrorists.

President Trump has asked for a “clean” reauthorization (i.e., without substantive amendments to the law). He may not get it.

The U.S. intelligence community claims that Section 702 is essential to national security. The other side — Democrats and libertarians (please pardon the redundancy) and even a few misguided conservatives — claim it is the means by which the government violates the Fourth Amendment’s requirement that we be safe from unreasonable searches.

Section 702 provides the legal authority for the intelligence community to intercept telephone calls, text messages, emails and other forms of electronic communication involving foreigners, as defined by law.

Another requirement is that communications pass through U.S. equipment to qualify for FISA monitoring. All intercepted communications are stored in a database that can be queried by the intelligence community, but only by people trained in privacy matters.

Sometimes there are U.S. “persons” — citizens, lawful permanent residents or U.S. entities, such as corporations located here — whose communications are incidentally captured by the National Security Agency, CIA, FBI or one of the other alphabet agencies.

Those communications are “minimized,” meaning they are available only with restricted access, identities are masked, and non-intelligence, noncriminal U.S.-person data must be destroyed within five years.

Moreover, no U.S. “person” or anyone in the U.S. can be targeted under FISA.

Again, FISA is designed to capture foreign communications.

The law, opponents insist, must require that search warrants be issued before any data on U.S. persons is collected. The problem with FISA, they say, is that it authorizes searches of U.S. persons programmatically, not individually.

The problem with that, the intelligence community says, is that you cannot tell what information you can capture until you have it.

To authorize an individual search, you would have to have foreknowledge that a crime — espionage, terrorism and such — is being plotted by foreigners or some foreigner and at least one person within the U.S. That’s clearly impossible given the billions of electronic conversations that occur every day.

There are other problems. Remember Carter Page? The FBI, in its application for a FISA warrant against him, swore that he was a Russian agent. He wasn’t. He was a campaign aide in Mr. Trump’s first run for the presidency.

The abuses were the result of an anti-Trump kaffeeklatsch in the FBI that has since, we believe, been cleaned out.

So how do we know that the FBI and the other agencies are complying with FISA? Because it is one of the most intensively surveilled intelligence tools.

For starters, the FISA Court evaluates FISA applications annually to ensure compliance with the Constitution and the law. Agency inspectors general investigate and report to Congress on FISA violations.

Congress receives a report every six months from the Office of the Director of National Intelligence and the Department of Justice regarding the intelligence community’s use of FISA and compliance with minimization procedures. These include significant interpretations of the FISA law by the FISA Court.

Every two months, the Office of the Director of National Intelligence and the Justice Department conduct a review of FISA compliance, including any FISA violations, and report their findings to the FISA Court and Congress.

Then there is the Privacy and Civil Liberties Oversight Board. It implements the recommendations of the 9/11 Commission Act of 2007 by reporting information on the number and types of reviews undertaken and reported to Congress. Those reports also show the number of complaints received by the intelligence community and a summary of their disposition.

Such oversight efforts are not perfect. Unreported violations of FISA can still happen, but oversight of FISA is as good as it can get without imposing restrictions that will effectively stop the FISA agencies from detecting terrorists and spies.

The “warrantless searches” must continue.

We must conclude that the FISA safeguards are working and that FISA, especially Section 702, is necessary for protecting national security.

If Congress does not reauthorize Section 702, then the nation will be in far greater danger than before.

• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and a contributing editor for The American Spectator.