The House of Representatives is considering whether and how to reauthorize the U.S. person query protocols for Section 702 of the Foreign Intelligence Surveillance Act. FISA 702 authorizes the FBI and other federal law enforcement agencies to search the names of American residents against National Security Agency intercepts of foreign intelligence communications. It allows investigators to see whether a U.S. resident has either been in contact with a foreign intelligence service or terrorist/organized crime group, or is being discussed by said group.
Due to prior gross mismanagement of the system by the FBI, which regularly ran 702 queries on Americans the FBI had no evidentiary indication were engaged in espionage or terrorism, 702 reauthorization is now in question. Some House members are trying to reach a compromise that would balance individual privacy alongside FISA’s national security interests. Other Republicans, however, are putting ignorant posturing before basic national security realities.
Take former President Donald Trump. In a social media post on Wednesday, Trump showed he didn’t pay attention to the sources of intelligence in his daily intelligence briefings (FISA-related material constitutes a significant part of the President’s Daily Brief). Calling on Congress to “Kill FISA,” Trump complained that it had been used to spy on his campaign.
The truth is far more complicated than that. True, prior FBI misuse of the 702 query system was rampant. True, FBI misrepresentations led to a FISA warrant being used to spy on Trump campaign staffer Carter Page. True, the intelligence community utterly failed to distance itself from an uncorroborated intelligence report by former British intelligence officer Christopher Steele. Indeed, too many in the intelligence community took Steele’s report, which constituted a clear breach of his own MI6 training, as credible. This damaged Trump’s campaign and, understandably, his trust in the intelligence community.
But that’s only one side of the coin. The FBI has subsequently reformed its 702 query protocols with significant success, as shown by tenfold drop in such queries. And some Trump campaign officials deserved national security attention. Consider Paul Manafort’s links to corrupt, pro-Russian interests and Michael Flynn’s paid travel to Moscow in support of Russian propaganda and later pre-office conversations with the then-Russian ambassador. By agenda and action, Russia is patently a preeminent adversary of the United States.
Killing FISA would be a grievous mistake. As would be the introduction of a warrant-only process for all U.S. person queries. The key problem with requiring warrants for all U.S. persons 702 queries is threefold.
First, queries of a name against a database aren’t exactly Stasi-like impositions. Such queries already apply when we apply for jobs (background checks) and when we’re stopped by police for a traffic violation, for example. If national security journalists are doing their jobs well, for example, they should expect to have been queried under FISA.
Second, the issue of scale. The government is notoriously inefficient. But considering the 200,000-plus queries made in 2022, the vast majority of which were legitimate, an all-warrant 702 query system would require a vast increase in FISA judges and related warrant application/administration systems. It would be very difficult to facilitate rapid “yes” or “no” responses to warrant applications. And delays would endanger the necessarily speedy investigative actions needed to intercept terrorist or foreign espionage activities. The concern would not simply be a greater risk of failing to stop threats to national security before they could reach fruition, but also the greater risk of failing to collect prosecutable or investigative evidence before said evidence was disposed of or otherwise lost to detection.
Finally, there’s the probable cause challenge. True, most terrorists lack the operational security training sufficient to hide probable cause of their criminality. A well-resourced FISA 702 system (and we’re talking massive increases in 702 judges, etc.) would carry risks but might be possible for counterterrorism. The problem is that probable-cause standards for 702 would be impossible in the murky world of espionage. It simply could not cope with the vast mix of known and unknown foreign intelligence officers and agents who take extensive steps to mitigate their visibility to detection. Imagine a couple of scenarios where the FBI might want to 702 a U.S. person but potentially lacked probable cause to get a warrant.
A small FBI surveillance team in New York City is following a known Russian spy undercover as a French businessman. The spy has sent a WhatsApp message to an unknown number his message history suggests he has not previously messaged. He wants to meet for happy hour at a crowded Manhattan bar. The other party agrees. At said bar, the FBI surveillance team ascertains the other party is an employee of the New York Stock Exchange’s cybersecurity unit. The two men are somewhat familiar with one another and seem to have met at least once before. They chat for an hour and then the American leaves.
The FBI could not hear the entire conversation but from what they did hear, nothing particularly suspicious came up. The two appear to have a mutual friend. Still, the two could have used code words or made a clandestine swap of materials. They could have shared data across their phones without taking their phones out of their pockets. The FBI doesn’t detect any of these actions but that doesn’t mean they didn’t happen. The FBI wants to run a 702 query on the American.
Would a FISA judge approve that query request? Probably, but not certainly.
Conversely, imagine that a separate woman compliments the spy’s blazer as he goes to order a drink at the bar. The woman has just ordered a round of drinks herself and, thanked by the smiling spy, returns to her friends at another table. But the FBI has to consider: Was this simply happy hour banter? Or was it an espionage tasking? Establishing 702 probable cause here would be very hard. But what if the American woman is actually a longtime Russian illegal, a la Ghost Stories. What if Moscow has told the spy in advance that in the event he is ever compromised, a woman dressed exactly like this woman will compliment his jacket in the exact fashion that just occurred? What if the blouse the woman is wearing is a signal for where the spy should go to meet an escape team?
Top line: a probable-cause 702 burden would facilitate greater levels of more successful espionage by hostile intelligence services, particularly China and Russia. It would also enable and encourage greater intelligence activity by allied intelligence services that sometimes engage in hostile intelligence activity, notably Israel and France. All of this explains the interest of foreign adversaries in seeing FISA 702 made into a warrant-only system.
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Take Edward Snowden, the “whistleblower” who disclosed thousands of classified programs and operational successes that pertained to foreign governments and terrorists rather than U.S. civil liberties concerns. Snowden’s X timeline on Tuesday was full of reposts of GOP members opposed to warrantless 702 queries. Considering that Snowden is hiding in Russia, his reposts likely reflect an order from his FSB security service handlers.
This is a tough issue. But members of Congress are dancing with fire if they want warrants to be necessary simply for person-queries. Voting for a reformed but still warrantless FISA 702 system is the best way to go.