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 nicely 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 movement of fentanyl throughout our southern border.  In these circumstances, we can’t hamstring the U.S. Intelligence Group both by failing to resume Part 702 of the International Intelligence Surveillance Act or by limiting it in ways in which would make it troublesome for the federal government to guard People. To be clear, Part 702 saves American lives and helps preserve People secure from worldwide terrorist assaults, international 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 Shield Liberty and Finish Warrantless Surveillance Act, as reported by the Home Committee on the Judiciary.

We admire the intense efforts made by each that Committee and the Everlasting Choose Committee on Intelligence to judge Part 702 and think about what privateness and extra protections are wanted. In our view, nevertheless, the laws reported out by the Committee on the Judiciary is critically flawed and would damage our authorities’s means to guard People within the present heightened menace surroundings. We define a few of our considerations beneath.

Most notably, as written, H.R. 6570 might finish the Part 702 program completely. 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. Consequently, the invoice might prohibit digital surveillance via 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. Under are only a few examples:

• The invoice grants unprecedented rights to foreigners. The proposed Part 702(f)(1) would lengthen to international spies and terrorists the identical protections proposed to be afforded to People simply because they could be (or have as soon as been) in america. This goes in opposition to elementary rules of a long time of surveillance legislation rigorously crafted by each Congress and the courts. Beneath the proposed provision, if a spy recruiter for the Folks’s Republic of China was recognized to be inside america, 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 international targets speaking with each other, however not with any American in any respect, the invoice would drastically restrict the federal government’s means 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 saved 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 courtroom warrant. Even when the federal government might set up possible trigger – circumstances hardly ever instantly current within the fast-moving worlds of terrorists, spies, and ransomware gangs the place the federal government usually has merely a tip — it might nonetheless take days to take action. In brief, if the Intelligence Group discovered {that a} terrorist abroad was speaking to somebody inside america, it couldn’t search its database to find out whether or not there may be an imminent menace to america. This can 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 additionally to your complete intelligence neighborhood. This provision, if adopted, would vastly hurt the international intelligence mission of the NSA, CIA and NCTC.

• The invoice would critically undermine cybersecurity efforts. As written, the warrant “exception” for cybersecurity is dangerously slim and can make it almost not possible to guard People who’re victims of international cyberattacks each day, not to mention get well ransomware funds. Proposed Part 702(f)(2)(B)(i)(IV) purports to permit queries utilizing a “recognized cybersecurity menace signature.” Nevertheless it isn’t clear what a “recognized 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 kind and scope of a international cyberattack. The results of adopting this provision is that the federal government merely received’t have the ability to warn Americans, companies, hospitals, vital infrastructure homeowners, faculties, and others of many imminent cyber threats.

As former nationwide safety officers, we consider the Home can’t responsibly undertake H.R. 6750. In contrast, H.R. 6611, as reported by the Everlasting Choose Committee on Intelligence, represents a considerate various strategy to Part 702 reforms. Cheap minds may disagree on the main points of the varied reforms that could be wanted, at the same time as included within the HPSCI invoice. Nevertheless it presents a rigorous strategy 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, vastly hamstring our authorities’s efforts to guard People.

Sincerely,