In 1929, Secretary of State Henry Stimson disbanded the State Department’s cryptology office that decoded foreign diplomatic cable traffic, famously saying afterwards, “Gentlemen do not read each other’s mail.” Thankfully, such breathtaking naivety did not last long.
Today, the United States has the chance to avoid—or repeat—a similar historic mistake. Before Dec. 31, Congress should renew, with reforms, section 702 of the Foreign Intelligence Surveillance Act, which authorizes targeted collection of communications by foreign terrorists and other foreign adversaries. Section 702 has proven vital in protecting Americans against terrorist attacks and foreign plots such as Russia’s aggression against Ukraine, threats from China, and Iran’s state-sponsored terrorism. We can unequivocally state that Section 702 is the most timely, impactful, and cost-effective authority to obtain foreign intelligence on terrorists, spies, weapons proliferators, cyber attackers and nation-states that pose threats to the United States and our allies. History will judge us harshly if we unilaterally give up an important intelligence advantage against those who are trying to harm us.
The two of us have held senior career national security positions for a combined 63 years: one of us is a 39-year veteran of the Intelligence Community, including four years as the National Security Agency (NSA) director of operations, overseeing all aspects of NSA’s intelligence mission; the other was the top career counterterrorism policy official at the Department of Homeland Security (DHS) for more than a decade. We served administrations of both parties.
After section 702 was adopted in 2008, we saw firsthand how the Defense Department, the Intelligence Community, DHS, and the Federal Bureau of Investigation (FBI) used analysis based on intelligence collected under section 702’s authority to stop numerous terrorist plots that could have killed or injured thousands of Americans and done significant damage to our economy. We also saw firsthand how this information disrupted foreign adversaries’ plots to weaken our country through cyberattacks, kinetic attacks on our forces overseas and efforts to sow division here at home.
It is axiomatic in intelligence that failures make front-page headlines while successes get little or no publicity. Publicizing successes enables adversaries to change their tactics, leaving us blind to new plots. As a result, only a few section 702 successes have been publicized. The President’s Intelligence Advisory Board (PIAB) used declassified examples, which we knew firsthand, where collection made possible by section 702 was vital in disrupting terrorist and foreign plots: the 2009 plot to set off bombs on the New York City subway system, the 2010 attempted vehicle bombing at a Portland Christmas tree lighting ceremony, attacks on U.S. troops overseas, and more recently, cyberattacks against U.S. critical infrastructure and the smuggling of fentanyl into the United States.
If the government wants to collect communications on a U.S. person, it must follow the procedures required by the U.S. Constitution—ask a judge to issue a search warrant or court order. If the Intelligence Community wants to collect communications for foreign intelligence purposes on foreign individuals located overseas who are using U.S. telecommunications services, it must follow the procedures laid down in section 702. Section 702 does not authorize targeting of U.S. persons anywhere in the world or anyone, regardless of nationality, who is physically in the United States. However, if a targeted foreign individual communicates with a U.S. person, the government does incidentally collect that U.S. person’s communication.
To deal with this complication, the Intelligence Community has long-standing procedures to minimize any “incidental collection” of U.S. persons. These minimization procedures apply to any method of collection and are “baked into the DNA” of NSA personnel. NSA and the FBI are fully aware of the sensitivity of section 702 collection and go to great lengths to ensure such collection is handled appropriately.
Civil rights advocates and libertarians have always had skepticism about the government’s handling of collection under section 702, especially government officials querying that information using search terms associated with U.S. persons like names, phone numbers, and email addresses. Until recently, this has been balanced by agreed-upon, extensive safeguards and oversight mechanisms that govern the collection and use of this information—and those safeguards have until recently enjoyed broad, bipartisan support. External oversight bodies from all three branches of government regularly review how section 702’s implemented.
What has made section 702’s renewal controversial this time around is the FBI’s ability to access information collected under section 702’s authority for investigations not tied to national security. For a time, the FBI routinely searched databases with information collected under section 702’s authority even in non-national security investigations. This was corrected in 2021 when additional safeguards were put in place. Since 2021, the number of searches of U.S. persons in data collected under section 702 has dropped dramatically, and those that are made must comply with more stringent rules to protect Americans’ privacy. The PIAB recommended still more tightening up on the FBI’s access to these data, but still strongly supports renewal of section 702.
It would be wrong of Congress today to do what Stimson did in 1929 and deny the nation the ability to collect foreign terrorist and other foreign adversary communications. History teaches that Stimson reversed his position when he became secretary of War a year before the United States entered World War II. Code breaking efforts resulted in intelligence breakthroughs that led to major victories against the Japanese at Midway and German U-boats in the Battle of the Atlantic. Section 702 has given us victories against today’s terrorists and adversaries. Congress should renew section 702’s authority and make mandatory reasonable safeguards needed to protect Americans’ rights. Our nation cannot afford to lose the vital intelligence advantage that section 702 provides today.
Jon Darby has nearly 39 years’ experience in the U.S. intelligence community, including over four years as the National Security Agency’s director of operations and nearly ten years in NSA’s counterterrorism leadership positions. Thomas Warrick is a senior fellow and director of the Future of DHS Project at the Atlantic Council. He has 25 years’ experience in senior career policy positions at the Departments of State and Homeland Security, including more than ten years as DHS Deputy Assistant Secretary for Counterterrorism Policy.
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