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GailForce: Standby for More Debates on Privacy vs Security

“A lie gets halfway around the world before the truth has a chance to gets his pants on.”
Winston Churchill

On October 4th, the House Judiciary Committee introduced a bill that would extend the controversial Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is set to expire at the end of December, for six years. As NSA states on their web site, Section 702:

…allows the Intelligence Community to conduct surveillance on only specific foreign targets located outside the United States to collect foreign intelligence, including intelligence needed in the fight against international terrorism and cyber threats.

And this is important because…?

The “so what” factor in all of this is that senior intelligence officials consistently say this is one of the most important programs we have for dealing with the terrorist threat. Last month I attended the annual Intelligence & National Security Summit in Washington D.C. The event is in its fourth year and was co-hosted by AFCEA  and INSA (The Intelligence and National Security Alliance). During the conference, Admiral Mike Rogers, the head of both NSA and U.S. Cyber Command stated, Section 702 produces a “significant segment of NSA’s ability to generate insights on counterterrorism, counter-proliferation, what nation-states and other actors are doing”. He also said he had told Vice President Pence that week, “Sir, I know of no ability that this organization has to replace that which we’re able to access because of the authority under 702. Sir, if this were removed, and it was not reauthorized…I can’t overcome that”. Rogers understands the concerns and acknowledged in the course of conducting 702 operations they may encounter U.S. citizens but NSA takes care not to violate U.S. citizens privacy.

Principal Deputy Director of National Intelligence Susan Gordon said “there’s nothing more important” than to reauthorize Section 702. She also said if you are not talking to one of the terrorist targets, “you’re not in existence in this world.”

New FBI Director, Christopher Wray, concurred with his peers during the summit and said the place 702 is most important is that place in the terrorist planning process where we can detect and prevent a plot citing the detection and prevention of the New York Subway bombing as an example.

Speaking at the same conference, Tom Bossert, Assistant to the President for Homeland Security and Counterterrorism, said the terrorism threat was not going to “sunset” so 702 shouldn’t. He also said President Trump wants to have the legislation pass. Bossert pointed out that terrorists use of gmail is very prevalent today. This should come as no surprise to anyone since the news is filled with reports of terrorists using email and social media to recruit and as their command and control system. He said 702 gave him the ability to “pounce” in the very small window in between the “idea” and the “attack” of a terrorist plot.

If Section 702 is so important why is it controversial?

In the aftermath of the Snowden leaks, many Americans were left with the impression that NSA was using this authority to collect and read not just the emails of “bad guys” but also all emails sent by U.S. citizens. A Joint statement issued at the height of the controversy by the Director of National Intelligence and the head of NSA unsuccessfully sought to defuse the situation saying:
“Press reports based on an article published in today’s Wall Street Journal mischaracterize aspects of NSA’s data collection activities conducted under Section 702 of the Foreign Intelligence Surveillance Act. The NSA does not sift through and have unfettered access to 75% of the United States’ online communications.”

When the initial media reports came out in 2013, I knew immediately it was a distortion of the truth. First, the information in the Snowden leak was old news. I discovered the existence of the program during the Bush administration several years earlier while doing my daily reading of unclassified national security related topics that could be found by anyone interested, in mainstream media reporting. It didn’t get much traction at the time, probably because it was not reported in a salacious manner. As a retired intelligence professional, I admittedly now sit on the sidelines; but I’d seen nothing in either the Bush or the Obama administration to suggest they had suddenly gone J. Edgar Hoover on the nation.

Second, as someone who spent 28 years working in intelligence, despite what you see in Hollywood movies and TV shows, I knew it was against the law for the intelligence community to spy on U.S. citizens, a fact that was constantly pounded into our brains.

Third, one of the challenges of conducting intelligence analysis is that so much information is collected that most of it does not get looked at. In 2007 a senior Intelligence community official stated at a conference that of all the intelligence that’s collected only one tenth million percent of it is looked at by analysts.

He put that information out because he was speaking at a conference asking industry and academia for help in finding a solution. The intelligence community says analyzing large amounts of information (current buzz word is Big Data”) is still a major problem; that is also one reasons artificial intelligence (AI) is a new craze in the intelligence world.

Specifically looking at the Section 702 controversy, the previously mentioned Joint Statement indicated, “In its foreign intelligence mission, and using all its authorities, NSA “touches” about 1.6%, and analysts only look at 0.00004%, of the world’s internet traffic.”

Fourth, NSA was embarrassed by the leaks and in the spirit of transparency, released into the public domain the documents Snowden leaked as well as their training program they set up for the 702 program. I’m a Geek but even I did not read all the hundreds of thousands or so documents released (neither did Snowden); but there were several things in the statement that jumped out at me and I think the public should have on their radar as the program comes up for renewal in December.

o Section 702 specifically prohibits the intentional acquisition of any communications when all parties are known to be inside the U.S.
o The law specifically prohibits targeting a U.S. citizen without an individual court order based on a showing of probable cause.
o The law only permits NSA to obtain information pursuant to Section 702 in accordance with orders and procedures approved by the Foreign Intelligence Surveillance Court.
o When conducting 702 FISA surveillance, the only information NSA obtains results from the use of specific identifiers (for example email addresses and telephone numbers) used by non-U.S. persons overseas who are believed to possess or receive foreign intelligence information.
o Foreign terrorists sometimes communicate with persons in the U.S. or Americans overseas. In targeting a terrorist overseas who is not a U.S. person, NSA may get both sides of a communication. If that communication involves a U.S. person, NSA must follow Attorney General and FISA Court approved “minimization procedures” to ensure the Agency protects the privacy of U.S. persons.

Why is Section 702 still controversial?

In a recent article on this topic, the Washington Post indicated, “House members generally agree that the authority is useful and that it should be renewed. But a number of them have one major privacy concern: The law allows the FBI to query the Section 702 database for emails and phone-call transcripts of Americans without first obtaining a warrant.”

In an attempt to address this situation, the proposed House bill, “would not restrict the query process itself. But the legislation, called the USA Liberty Act, would require the FBI to obtain a warrant to review any communications that are returned in response to a query seeking evidence of a crime. The drafting of the bill was led by the panel’s chairman and vice chairman, Reps. Bob Goodlatte (R-Va.) and John Conyers Jr. (D-Mich.).”

Civil Liberties groups are also lining up to express their concerns. Think, I’ll end here. It will be interesting to see how the arguments pro and con will develop. As always my views and opinions are my own.

 

Author

Gail Harris
Gail Harris

Gail Harris’ 28 year career in intelligence included hands-on leadership during every major conflict from the Cold War to El Salvador to Desert Storm to Kosovo and at the forefront of one of the Department of Defense’s newest challenges, Cyber Warfare. A Senior Fellow for The Truman National Security Project, her memoir, A Woman’s War, published by Scarecrow Press is available on Amazon.com.

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