A Letter to Congress on the Impression of Part 702

[Ed note: The House of Representatives is considering the renewal of surveillance authorities this week that a number of former government officials say are critical to U.S. national security.  But they don’t come without controversy. Below is a letter sent to Congress this week, supported by 44 former members of government, about just how important it is for Congress not to let the authorities expire.] 

December 11, 2023

The Honorable Mike Johnson, Speaker of the Home of Representatives

The Honorable Steve Scalise, Majority Chief of the Home of Representatives

The Honorable Hakeem Jeffries, Minority Chief of the Home of Representatives

Members of the Home of Representatives

Expensive Mr. Speaker and Members:

As you properly know, our nation is underneath important menace at this time with wars in Europe and the Center East, a possible battle with China within the Indo-Pacific, and the lethal stream of fentanyl throughout our southern border.  In these circumstances, we can not hamstring the U.S. Intelligence Neighborhood both by failing to resume Part 702 of the Overseas Intelligence Surveillance Act or by limiting it in ways in which would make it tough for the federal government to guard People. To be clear, Part 702 saves American lives and helps maintain People secure from worldwide terrorist assaults, overseas cyberattacks, abroad fentanyl suppliers, and different threats to our nationwide safety. There’s no substitute for it.

It’s on this context that we, a bipartisan group of former nationwide safety officers that served in Republican and Democratic Administrations and on Capitol Hill, write to urgently warn you of the devastating impacts to nationwide safety if Congress passes H.R. 6570, the Defend Liberty and Finish Warrantless Surveillance Act, as reported by the Home Committee on the Judiciary.

We respect the intense efforts made by each that Committee and the Everlasting Choose Committee on Intelligence to guage Part 702 and think about what privateness and extra protections are wanted. In our view, nonetheless, the laws reported out by the Committee on the Judiciary is significantly flawed and would damage our authorities’s capacity to guard People within the present heightened menace atmosphere. We define a few of our issues beneath.

Most notably, as written, H.R. 6570 might finish the Part 702 program totally. Part 21(d) of the invoice enumerates the unique provisions of legislation permitting digital surveillance, however – in what presumably is a severe drafting error – it fails to incorporate Part 702. In consequence, the invoice might prohibit digital surveillance by means of Part 702 utilizing the compelled help of an digital communications service supplier. Ambiguous or erroneously drafted laws should not imperil America’s security.

H.R. 6570 accommodates many different unworkable and harmful provisions with no foundation within the Structure, statute, or caselaw. Beneath are only a few examples:

The invoice grants unprecedented rights to foreigners. The proposed Part 702(f)(1) would prolong to overseas spies and terrorists the identical protections proposed to be afforded to People simply because they may be (or have as soon as been) in the USA. This goes towards basic rules of a long time of surveillance legislation rigorously crafted by each Congress and the courts. Underneath the proposed provision, if a spy recruiter for the Individuals’s Republic of China was identified to be inside the USA, that individual couldn’t be the topic of a question underneath the proposed invoice until he (unlikely) certified for one of many proposal’s restricted exceptions. Furthermore, by extending this “safety” to overseas targets speaking with each other, however not with any American in any respect, the invoice would drastically restrict the federal government’s capacity to warn People that they’re the targets of terrorist threats, malicious cyber exercise, or espionage operations. Giving foreigners “question safety” does nothing to assist People’ privateness however will as a substitute endanger People.

The invoice would prohibit queries which have stored our nation secure. The invoice would bar the federal government from querying the Part 702 database with phrases related to People until it first obtains a court docket warrant. Even when the federal government might set up possible trigger – circumstances not often instantly current within the fast-moving worlds of terrorists, spies, and ransomware gangs the place the federal government typically has merely a tip — it might nonetheless take days to take action. In brief, if the Intelligence Neighborhood discovered {that a} terrorist abroad was speaking to somebody inside the USA, it couldn’t search its database to find out whether or not there may be an imminent menace to the USA. It will endanger American lives. Furthermore, as written, this warrant requirement would apply not simply to the FBI—which is the topic of different particular provisions primarily based on prior controversies—but in addition to the complete intelligence group. This provision, if adopted, would significantly hurt the overseas intelligence mission of the NSA, CIA and NCTC.

The invoice would significantly undermine cybersecurity efforts. As written, the warrant “exception” for cybersecurity is dangerously slender and can make it practically unimaginable to guard People who’re victims of overseas cyberattacks each day, not to mention recuperate ransomware funds. Proposed Part 702(f)(2)(B)(i)(IV) purports to permit queries utilizing a “identified cybersecurity menace signature.” Nevertheless it isn’t clear what a “identified cybersecurity menace signature” even means. In any case, it apparently wouldn’t cowl utilizing precise names, IP addresses or e-mail addresses of targets of malicious cyberattacks. Cybersecurity professionals know that these phrases are exactly what’s wanted to uncover the sort and scope of a overseas cyberattack. The results of adopting this provision is that the federal government merely received’t be capable to warn Americans, companies, hospitals, crucial infrastructure homeowners, colleges, and others of many imminent cyber threats.

As former nationwide safety officers, we consider the Home can not responsibly undertake H.R. 6750. In contrast, H.R. 6611, as reported by the Everlasting Choose Committee on Intelligence, represents a considerate various method to Part 702 reforms. Affordable minds would possibly disagree on the main points of the assorted reforms that may be wanted, at the same time as included within the HPSCI invoice. Nevertheless it presents a rigorous method to the challenges and makes an attempt in a accountable solution to steadiness privateness protections and our nation’s security. Enacting H.R. 6750 will, against this, significantly hamstring our authorities’s efforts to guard People.

Sincerely,