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May 28, 2024

Surveillance Law Section 702 Keeps Us Safe

Opinion|Government Surveillance Keeps Us Safe




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Guest Essay

Credit…Christopher Anderson/Magnum Photos

By Matthew Waxman and Adam Klein

Mr. Waxman served in senior national security roles in the George W. Bush administration. Mr. Klein served as the chairman of the Privacy and Civil Liberties Oversight Board from 2018 to 2021.

This is an extraordinarily dangerous time for the United States and our allies. Israel’s unpreparedness on Oct. 7 shows that even powerful nations can be surprised in catastrophic ways. Fortunately, Congress, in a rare bipartisan act, voted early Saturday to reauthorize a key intelligence power that provides critical information on hostile states and threats ranging from terrorism to fentanyl trafficking.

Civil libertarians argued that the surveillance bill erodes Americans’ privacy rights and pointed to examples when American citizens got entangled in investigations. Importantly, the latest version of the bill adds dozens of legal safeguards around the surveillance in question — the most expansive privacy reform to the legislation in its history. The result preserves critical intelligence powers while protecting Americans’ privacy rights in our complex digital age.

At the center of the debate is the Foreign Intelligence Surveillance Act. Originally passed in 1978, it demanded that investigators gain an order from a special court to surveil foreign agents inside the United States. Collecting the communications of foreigners abroad did not require court approval.

That line blurred in the digital age. Many foreign nationals rely on American providers such as Google and Meta, which route or store data in the United States, raising questions as to whether the rules apply to where the targets are or where their data is collected. In 2008, Congress addressed that conundrum with Section 702. Instead of requiring the government to seek court orders for each foreign target, that provision requires yearly judicial approval of the rules that govern the program as a whole. That way, the government can efficiently obtain from communication providers the calls and messages of large numbers of foreign targets — 246,073 in 2022 alone.

Since then, Section 702 has supplied extraordinary insight into foreign dangers, including military threats, theft of American trade secrets, terrorism, hacking and fentanyl trafficking. In 2022 intelligence from 702 helped the government find and kill the Qaeda leader Ayman al-Zawahri, one of the terrorists responsible for Sept. 11. Almost 60 percent of the articles in the president’s daily intelligence briefing include information from Section 702.

Although Section 702 can be used only to target foreigners abroad, it does include Americans when they interact with foreign targets. Not only is such incidental collection inevitable in today’s globalized world; it can be vital to U.S. security. If a terrorist or spy abroad is communicating with someone here, our government must find out why.

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