As Section 702 of the FISA Amendments Act of 2008 nears expiration on April 19, the head of U.S. Cyber Command (CYBERCOM) backed extension of the provision at a hearing of the Senate Armed Services Committee (SASC) on Apr. 10.
“Since Cyber Command’s elevation in 2018 to a unified combatant command, Cyber Command has worked hard to make the most of its authorities, resources, and support,” said U.S. Air Force Gen. Timothy Haugh, the new head of CYBERCOM and the 19th director of the National Security Agency (NSA) since its founding in 1952.
“Of those authorities, none is as vital to national security and the command as Section 702 of the Foreign Intelligence Surveillance Act, which is essential for identifying malicious cyber actors and protection of the nation and the Department of Defense,” Haugh said.
On April 5, the Department of Justice approved a one-year Section 702 extension, and Congress may vote on it this week as well as possible reforms to Section 702 in the House’s consideration of the Reforming Intelligence and Securing America Act, H.R. 7320.
The Office of the Director of National Intelligence (ODNI) has said that by the mid-2000s, “many terrorists and other foreign adversaries were using email accounts serviced by U.S. companies”–a situation that ODNI said delayed or prevented surveillance, as FISA courts had to authorize it through a probable cause affirmation.
Section 702 of FISA allows intelligence agencies to surveil foreigners overseas and permits the Federal Bureau of Investigation (FBI) to query subsets of those targets for their U.S. contacts–an allowance that has led to civil liberty group criticism of the section as unlawful.
While the American Civil Liberties Union has said that Section 702 “has morphed into a domestic surveillance tool” in recent years, ODNI said in February that last year 23 percent of NSA’s intelligence reports contained Section 702 information; 60 percent of Presidential Daily Briefs had NSA-reported Section 702 information; and 70 percent of Central Intelligence Agency/”partners”‘ disruptions of “illicit synthetic drugs,” such as fentanyl, came from Section 702 data.
The office said that, in 2022, “U.S. person queries against Section 702 helped FBI to identify where the Chinese hackers had achieved successful compromises of [utilities’] network infrastructure”–an identification that ODNI said allowed the FBI “to alert the network operators so they could take action to mitigate the intrusions.”
Sen. Jack Reed (D-R.I.) said at the Apr. 10 hearing that extension of FISA Section 702 “is critical, and hopefully we can get it done.”