[Congressional Record Volume 164, Number 12 (Friday, January 19, 2018)]
[Extensions of Remarks]
[Pages E80-E81]
SENATE BILL 139
______
HON. DEVIN NUNES
of california
in the house of representatives
Friday, January 19, 2018
Mr. NUNES. Mr. Speaker, Section 702 of the Foreign Intelligence
Surveillance Act (FISA) provides a framework for the Government to
target non-U.S. persons located overseas to obtain foreign intelligence
information, with the compelled assistance of electronic communication
service providers. S. 139 reauthorizes and improves upon this
authority--the intelligence value of which cannot be overstated. For
example, Section 702 was critical in the tracking of Hajji Iman, a
senior Islamic State terrorist who was removed from the battlefield.
Members have had numerous opportunities over the past several years
to attend Section 702 education sessions, either on Capitol Hill or at
Fort Meade, Maryland. These sessions have demonstrated the extensive
level of oversight related to this authority, and underscored that no
acts of intentional abuse have occurred since its creation. Despite
these facts, and the fact that various courts have affirmed the
constitutionality of Section 702, some Members sought to add further
protections to enhance U.S. person privacy. As a result, S. 139, which
reauthorizes title VII of FISA for six years, includes additional
privacy, oversight and transparency provisions.
Throughout the debate, a good deal of inaccurate information about
Section 702--including about the program's oversight, as well as the
current or potential use of incidentally collected U.S. persons
information by the Government--was put forward publicly.
Section 702 is not a bulk-collection authority. It is instead
narrowly applied to a relatively small number of targets worldwide. In
the Director of National Intelligence's 2016 annual transparency
report, the Intelligence Community publicly reported that there are
roughly 106,000 Section 702 targets--a vanishingly small fraction of
the worldwide population of just over 7 billion. The targets'
communications are, moreover, sought only for legally authorized
foreign intelligence purposes. Section 702 is used for counterterrorism
purposes, as well as to target spies, weapons proliferators, and other
foreign threats to the United States and allies.
Section 702 is subject to a rigorous oversight regime by all three
branches of government. The independent Privacy and Civil Liberties
Oversight Board (PCLOB) produced a report on Section 702 in 2014, which
states that Section 702 is constitutionally sound and implemented in a
way that protects U.S. person privacy, while at the same time offering
several recommendations to better enhance the program's privacy
protections. As of 2016, the PCLOB reported that the Executive Branch
has implemented all of its recommendations, either in whole or in part.
In addition, the Foreign Intelligence Surveillance Court (FISC), as
well as several U.S. district courts and the 9th Circuit Court of
Appeals, have confirmed that Section 702 is constitutional, and that
the implementation of the program is consistent with the Fourth
Amendment.
1. nsa's ``about'' communication collection
One issue during the reauthorization debate was how, if at all,
Congress might address the National Security Agency (NSA's) voluntarily
discontinued practice of collecting so-called ``about'' communications,
in connection with NSA's Section 702 upstream collection. NSA and other
Intelligence Community agencies obtain so-called ``downstream''
collection, which involves only the collection of messages ``to'' or
``from'' Section 702 selectors. NSA, on the other hand, is the only
Intelligence Community element that conducts Section 702 upstream
collection, which permits NSA to target non-U.S. people located outside
of the United States for foreign intelligence purposes with the
assistance of the providers that operate the ``Internet backbone.''
Because of the way communications traverse the Internet, it is
possible for NSA to acquire communications ``about'' a Section 702
target's specific selector, rather than ``to'' or ``from'' the
selector. This type of communication is known as an ``about''
communication, and takes place only in NSA's upstream collection. NSA
is statutorily prohibited from intentionally acquiring domestic
communications, meaning those that originate and end in the United
States. Therefore, NSA set up several filters in upstream collection to
avoid intentionally ingesting domestic communications.
In 2016, NSA self-reported a technical problem related to ``about''
communication collection. The agency then informed the Department of
Justice, the FISC, and the appropriate congressional committees. The
FISC raised concerns with the compliance incident, and ordered NSA to
find a solution. After much consideration, NSA, on its own initiative,
decided to cease ``about'' communication collection to fix the issues
discussed with the FISC. This type of self-reporting of compliance
incidents is expected of the Intelligence Community elements--and is
reason to credit, rather than doubt, Section 702 oversight mechanisms.
This incident and resulting chain of events demonstrates that the law
is working as intended and does not indicate that abuse has occurred or
that Congress needs to further limit the Section 702 authority.
Some in Congress called for a permanent end to ``about''
communication collection. Such a prohibition would limit NSA's ability
to reconstitute the collection in the future, even with FISC approval,
and use it to identify threat networks. For that reason, rather than
permanently prohibiting NSA's ``about'' communication collection, S.
139 includes a compromise that allows for the possibility of a future
technical solution. If NSA wants to restart ``about'' communication
collection, NSA would need to first convince the FISC that the
technical changes to ``about'' communication collection satisfy the
FISC's concerns from 2016. After receiving FISC approval to restart
``about'' communication collection, NSA would brief the relevant
congressional committees of jurisdiction, and then wait 30 days to
provide Congress time to act. If Congress takes no action in 30 days,
NSA may move forward with ``about'' communication collection. This
legislation strikes the right balance between national security and
privacy.
2. fbi access to section 702 information for criminal purposes
Similar to all other surveillance authorities, it is possible that a
Section 702 target may communicate with a U.S. person or person located
inside the United States. Collection on a U.S. person communicating
with a foreign target is known as ``incidental collection.'' Such
``incidental collection'' is carefully managed. The Intelligence
Community's procedures for handling the incidental collection of U.S.
person information are regularly reviewed by the FISC, and have been
found to be sufficient by the PCLOB. Furthermore, U.S. district courts
have reviewed the issue of incidental collection of U.S. person
information under Section 702, and determined that such collection is
consistent with the Fourth Amendment.
Despite the number of Section 702 education sessions sponsored by the
House Permanent Select Committee on Intelligence (the
[[Page E81]]
Committee), some have claimed that the Intelligence Community is
abusing the Section 702 authority by targeting Americans, an action
that is specifically prohibited by statute. There is, however, no
evidence of a single intentional abuse that has resulted in the
improper targeting of Americans. There have been others who have
asserted that the Intelligence Community has inaccurately reported
certain statistics each year related to the use of Section 702. These
claims are demonstrably false, and unsupported by any evidence.
Unfortunately, the dissemination of such inaccurate information is a
disservice to the American public and the men and women of the
Intelligence Community who serve in silence to keep us all safe from
threats, both foreign and domestic.
During the course of reauthorization discussions over the past
several months, the Committee has brokered key compromises necessary to
reauthorize this critical national security authority. Therefore, after
significant deliberation, the House and Senate leadership agreed to
institute a probable cause-based order requirement for the FBI to
access the content of a Section 702 communication that is responsive to
a U.S. person query conducted by the FBI during a criminal
investigation not related to the national security of the United
States. This order requirement does not mandate that the FBI obtain an
order before reviewing metadata, accessing the results of any query
reasonably designed to return foreign intelligence information, or
querying to return evidence of a crime that is related to the national
security of the United States. The order requirement is narrowly
tailored to address instances where FBI is conducting a predicated
investigation into criminal activity not related to national security
and seeks to access the content of a Section 702 communication.
Consistent with well-established case law, the order requirement
should not be construed to mean--and it is not the Committee's intent--
that law enforcement access to lawfully-acquired information
constitutes a separate ``search'' under the Fourth Amendment. The
Fourth Amendment, as interpreted by various federal courts, does not
require the FBI to obtain an order from the FISC to review lawfully-
acquired Section 702 information, even if such access was pursuant to a
query using a U.S. person identifier. Accordingly, the agreement to
institute this limited order requirement is intended as a legislative
accommodation to provide additional statutory protections for U.S.
person information that is incidentally collected under Section 702.
This order requirement, along with the restrictions on the use of
Section 702 information in criminal prosecutions, should provide
further assurances to the American public that the purpose of this
critical national security tool is to discover and mitigate foreign
threats to the United States, and the handling and use of Section 702
information against U.S. persons is carefully controlled and managed.
