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Intelligence Committee Releases FISA Report: Section 702 Must Be Reformed

Today, the House Permanent Select Committee on Intelligence released a report titled “FISA Reauthorization: How America’s Most Critical National Security Tool Must Be Reformed to Continue to Save American Lives and Liberty.” The report was issued by the Majority FISA Working Group, comprised of Chairman Mike Turner (OH-10), Representatives Darin LaHood (IL-16) and Brian Fitzpatrick (PA-01).

“Our report outlines reforms necessary for FISA's reauthorization. The United States is currently at its greatest risk of a terrorist attack in nearly a decade. We cannot afford to let this critical national security tool expire. I look forward to working with my colleagues on this critical issue before the end of the year,” said Chairman Mike Turner.

Key takeaways:

  • All federal courts to date have found Section 702 constitutional (pp. 10-11) – The U.S. Courts of Appeals for the Second, Ninth, and Tenth Circuits have all held that when “the target of Section 702 surveillance is a foreign national located abroad having no substantial connections with the United States, that target is not entitled to Fourth Amendment protections,” even if the collection occurs inside the United States. In addition, the Foreign Intelligence Surveillance Court has repeatedly found Section 702 collection to be constitutional under the Fourth Amendment in its annual certification decisions.
  • Regarding incidental collection of U.S. persons’ communications, the Second Circuit held in United States v. Hasbajrami that when surveillance is “lawful in the first place . . . the incidental interception of non-targeted U.S. persons’ communications with the targeted persons is also lawful.”
  • Foreign Intelligence Surveillance Court judges are Senate-confirmed Article III judges (p. 16) – The Foreign Intelligence Surveillance Court is composed of eleven Senate-confirmed federal district court judges who are appointed to serve by the Chief Justice of the Supreme Court. Therefore, all judges who preside over the Foreign Intelligence Surveillance Court are Article III judges. By statute, each judge serves a maximum term of seven years, and all terms are staggered so that there is continuity on the Court. Foreign Intelligence Surveillance Court judges must be selected from at least seven of the United States judicial circuits, and three of the judges must live within 20 miles of Washington, D.C. Each judge that sits on the Foreign Intelligence Surveillance Court does so in addition to their regular caseload in their home federal district.
  • FISA Myths vs. FISA Realties (pp. 17-20) – To address some of the popular myths surrounding FISA, a side-by-side myth vs. reality chart was included. One such myth is that if a U.S. person communicates with a target of Section 702 collection, all of the U.S. person’s emails are subject to collection and review by the IC. In reality, if a U.S. person communicates with a target of Section 702 collection, only the specific correspondence in which the foreign target is a party is collected—this is referred to as “incidental collection.” The government can never target U.S. persons whose communications are incidentally collected under Section 702.
  • Another myth is that Section 702 collects on all foreigners and that any foreigner you communicate with is subject to Section 702 collection. In reality, Section 702 is a highly targeted collection program that only collects on foreigners who possess or communicate specific types of foreign intelligence information. It is individualized and extremely limited.
  • President Trump supported the last Section 702 reauthorization. – During the signing of S. 139, the FISA Amendments Reauthorization Act of 2017, President Trump said, “I would have preferred a permanent reauthorization of Title VII to protect the safety and security of the Nation. By signing this Act today, however, I am ensuring that this lawful and essential intelligence program will continue to protect Americans for at least the next six years. We cannot let our guard down in the face of foreign threats to our safety, our freedom, and our way of life.”
  • We have 45 FISA reform proposals. (pp. 42-47) – Our reforms go beyond Section 702 to make meaningful reforms to all of FISA.
    • Nineteen Provisions Stopping FBI Querying Abuses
      1. Restricts the number of FBI personnel who can authorize a U.S. person query by more than 90 percent.
      2. Requires the FBI to obtain a warrant to conduct a query on an American for evidence of a crime.
      3. Creates specific criminal liability for 702 leaks of a U.S. person’s communications.
      4. Makes FBI compensation contingent on query compliance.
      5. Mandates independent audits of all FBI queries of U.S. persons.
      6. Prohibits queries to suppress Americans’ political opinions or religious beliefs.
  • Fourteen Provisions to Prevent Another Carter Page Abuse
    1. Creates five enhanced criminal penalties for those who violate FISA, leak FISA applications, or lie to the FISA Court.
    2. Gives the FISA Court the authority to prosecute for contempt.
    3. Prohibits using political opposition research and press reports to get a FISA order.
  • Seven Provisions to Fix and Open Up the FISA Court
    1. Allows Members of Congress to attend.
    2. Requires court hearings to be transcribed and made available to Congress.
    3. Assigns a court-appointed counsel to scrutinize U.S. person surveillance applications.
    4. Stops the government from shopping for FISA Court judges.
  • Other Provisions Reflecting Congress’s Opportunity to Address Political and National Security Concerns
    1. Enhances the ability of the National Security Agency to target international fentanyl trafficking operations.
    2. Gives the Intelligence Community the ability to track Mexican drug cartels’ burner phones.
    3. Allows all foreigners applying for a visa, immigration, or asylum to be vetted using 702 queries.

Click here to read the full report.