Source: Federal Bureau of Investigation FBI Crime News
FISA Section 702
That brings me to what the FBI is doing to stay ahead of and strategically disrupt these threats.
Our focus is not only whether we’ve got the resources—the money and the right talent to deal with these threats to grow to meet the challenges of the next five, 10 years. But also whether we’ve got the necessary tools to combat our adversaries.
And one tool that’s indispensable to our efforts to combat threats posed by foreign adversaries, is one that will expire in just a couple of weeks if Congress does not act—and that’s our FISA Section 702 authorities.
702 allows us to stay a step ahead of foreign actors located outside the United States who pose a threat to national security. And the expiration of our 702 authorities would be devastating to the FBI’s ability to protect Americans from those foreign threats.
We’re glad so many members of Congress support this critical tool, and our use of it, and recognize the value of 702 is undisputed. Whether it’s to protect our critical infrastructure, find victims and get them the help they need, or detect foreign terrorists overseas directing an operative here to carry out an attack in our own backyard.
And crucial to our ability to use 702 to protect Americans is our ability to review intelligence promptly and efficiently through queries.
I’ve talked about how the PRC is pre-positioning on critical infrastructure across the United States. Just to pick an example: U.S.-person queries were key to discovering where Chinese hackers had successfully compromised network infrastructure at a transportation hub here in the United States, allowing us to alert the network operators so they could mitigate the intrusion.
Who knows how much damage those hackers could have caused—not just monetarily, but in the disruption and even the safety of Americans’ lives. Effective and prompt victim notifications like those hinge on our ability to conduct U.S.-person queries of our existing 702 collection.
In just one recent cyber case, for instance, 702 allowed the FBI to alert more than 300 victims in every state and countries around the world—many of those notifications made possible because of U.S.-person queries. And U.S.-person queries, in particular, may provide the critical link that allows us to identify an intended target or build out the network of attackers, so we can stop them before they strike.
And just like in cyber, U.S.-person queries continue to be key to identifying terrorists in the homeland, helping us find out who they’re working with and what they’re targeting—the intelligence we may need to stop them before they kill Americans. So, while it is imperative that we ensure this critical authority does not lapse, we also must not undercut the effectiveness of this essential tool with a warrant requirement or some similar restriction paralyzing our ability to tackle fast-moving threats.
Now, contrary to what a lot of folks are saying about the constitutionality and legality of U.S.-person queries, the law and the Fourth Amendment simply do not require a warrant in order for the FBI to query 702 data.
You don’t have to take my word for it. Multiple federal district courts and appellate courts have considered the issue, and no court has ever held that a warrant is required for the FBI to conduct U.S.-person queries—to blind ourselves from information already lawfully in our holdings. And when the Foreign Intelligence Surveillance Court renews the 702 program every year, not once has it found that the law requires a warrant to conduct U.S.-person queries.
And if the appetite for a warrant is borne out of compliance concerns, I can wholeheartedly say that there are plenty of ways to ensure compliance without paralyzing us and our ability to move fast. We’ve proven that. I’ve been unequivocal that the compliance incidents we’ve had in the past are unacceptable. And in response, we’ve undertaken a whole host of reforms to ensure that we’re good stewards of this authority.
Now, if you look at compliance reviews conducted by the Foreign Intelligence Surveillance Court and the Department of Justice on queries that were run after we put in place our reforms—let me say that again—the compliance reviews conducted on queries that were run after our reforms, both the FISC and DOJ have recognized that our reforms have resulted in substantial compliance improvements, hitting compliance rates well into the high 90% range.
And we’re going to keep looking for ways to push that number even higher. So, if there’s no constitutional, legal, or compliance necessity for a warrant requirement, then Congress would be making a policy choice to require us to blind ourselves to intelligence in our holdings. And if that’s the path that’s chosen, I can tell you that it will have real-world consequences on our ability to disrupt the threats I outlined—on our ability to protect the American people.
Take for example a foreign terrorist organization—ISIS or al-Qaida—legally or illegally sending an operative into the U.S. to conduct an attack. U.S.-person queries on the foreign terrorist’s communications are how we’re able to potentially learn the extent of what they’re planning and how imminent it may be.
Requiring a warrant for U.S.-person queries—which are typically conducted in the nascency of an investigation; when we usually cannot establish probable cause or demonstrate exigency; where time is of the essence to get ahead of the bad guys—would be a deliberate and shortsighted choice to blind us to the threat of a foreign terrorist in the U.S. planning and even executing an attack.
The consequences of tying our hands are not merely hypothetical. Just last year, we discovered that a foreign terrorist had communicated with a person we believed to be in the United States. Only by querying that U.S. person’s identifiers in our 702 collection did we find important intelligence on the seriousness and urgency of the threat. And less than a month after that initial query, we disrupted that U.S. person who, it turned out, had researched and identified critical infrastructure sites in the U.S. and had acquired the means to conduct an attack.
If we had to obtain a warrant to conduct that initial query, based on what we knew at that time, there is no way we could’ve met a probable cause standard or even an exigency exception. And if we hadn’t done that query, we would’ve lost valuable time we needed to get ahead of the potential attack.
Bottom line, a warrant requirement would be the equivalent of rebuilding the pre-9/11 intelligence “wall.” I saw the consequences of that policy choice 22 years ago. I’ve spoken with families of victims of that horrific attack. And now two decades later, I can assure you that none of our adversaries are holding back or tying their own hands—whether to attack us, steal from us, to put American national security, our economic security, and American lives at risk.
So we need lawyers—folks like you who are committed to educating the bar and the public on the rule of law and our national security to explain what’s law and what’s policy, what a warrant is and what it isn’t, and to help illuminate the consequences of purposefully choosing to limit the American Intelligence Community from accessing key and timely information about our foreign adversaries.
Because we’re in crunch time when it comes to reauthorizing this vital authority. And as the threats to our homeland continue to evolve, the agility and effectiveness of 702 will be essential to the FBI’s ability—and really our mandate from the American people—to keep them safe for years to come.
And we owe it to them to make sure we’ve got the tools we need to do that.
Thank you for having me, and I look forward to your questions.
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