The Reauthorization Debate

The Conference

The reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) is one of the most important legislative items on the Congressional calendar. Unless Congress votes to extend it, FISA Section 702 will expire at the end of calendar year 2023. Enacted in 2008, the foreign intelligence collection program enables the National Security Agency, Central Intelligence Agency, National Counterterrorism Center, and Federal Bureau of Investigation (FBI) to collect and share intelligence from non-U.S. persons who are located outside the United States for the purpose of protecting U.S. national security.

The debate surrounding the reauthorization of Section 702 is, and has always been, contentious. Since its passage, privacy and civil liberty activists have raised concerns about domestic spying, pointing to the “incidental” collection of U.S. person communications and the FBI’s checkered history of compliance with procedures for querying the Section 702 database. Critics have flagged the FBI’s use of U.S. person identifiers as “back door” searches that circumvent the Fourth Amendment’s warrant requirement. These concerns have given rise to significant changes to the law in favor of transparency and codified querying practices.

Proponents of renewing FISA Section 702 caution against jeopardizing what they characterize as an indispensable foreign intelligence program because of a small number of cases that may have raised valid privacy concerns. They counter that the national security imperative of collecting foreign intelligence merits exceptions that permit the retrieval of U.S. person communications by authorized agencies without warrants, provided they meet the “reasonableness” standard. Querying standards developed in response to a 2017 Congressional requirement further strengthen the guardrails that protect the privacy and civil liberties of Americans. Specific provisions mandate that in cases where the FBI seeks information generated by U.S. person identifiers that is unrelated to national security, the agency must first procure an order from the Foreign Intelligence Surveillance Court.

What is clear to all parties in the debate is the FBI’s history of noncompliance with the querying procedures governing the retrieval of information from the Section 702 database. In February 2023, the government announced a series of remedial measures to strengthen FISA compliance on the part of the FBI. The effect of these newly implemented remediation efforts remains to be seen. Critical questions for Congress as it wrestles with how to proceed with Section 702 are: Can the FBI strengthen its compliance record? What reforms, if any, will amply balance the national security value of the foreign intelligence collection program with the protection of privacy rights and civil liberties? Are the president’s Article II powers constitutionally adequate to sustain a Section 702-like surveillance program if Congress allows Section 702 to lapse?

To this end, the Center for Ethics and the Rule of Law (CERL) will convene a group of high-level subject matter experts from a variety of disciplines and perspectives, under Chatham House Rule, on October 5-6, 2023, to consider the path ahead for FISA Section 702. Over the course of this two-day closed-door workshop and public forum, participants will engage in open discussion with the goal of deescalating the facts and developing a set of actionable recommendations to aid those in Washington, D.C. who need to address these vital issues before it is too late. Prior to the day of off-the-record discussions, CERL will begin the gathering by holding a public panel designed to identify the current state of the debate and help inform intelligence professionals, national security lawyers, political scientists, and interested public servants of the importance of the reauthorization decision facing Congress at the end of the current calendar year.

Conference Report

Conference Report – Charting the Path Ahead for FISA Section 702

Schedule

Thursday, October 5

This program has been approved for a total of 3.0 Substantive CLE credits for Pennsylvania lawyers. Attendees seeking CLE credit can make a payment via cash or check made payable to The Trustees of the University of Pennsylvania on the day of the event in the amount of $120.00 ($60.00 public interest/non-profit attorneys). In order to receive the appropriate amount of credit, evaluation forms must be completed.

Penn Carey Law Alumni receive CLE credits free through The W.P. Carey Foundation’s generous commitment to Lifelong Learning.

2:00 – 3:00 pm Arrivals

3:00 – 6:15pm
Keynote (PUBLIC)

Public Keynote Fireside Chat & Panel

Join the Center for Ethics and the Rule of Law and the Annenberg Public Policy Center for a two-part public event on the path ahead for FISA Section 702, featuring experts in national security, foreign intelligence, and the rule of law. What types of reforms, if any, will sufficiently balance national security imperatives with protecting privacy rights and civil liberties? If FISA 702 were to sunset, what would happen to the state of intelligence collection on overseas threats?

3:00 – 4:30 p.m.: Fireside Chat with Assistant Attorney General Matthew G. Olsen

Matthew G. Olsen, Assistant Attorney General for National Security, U.S. Department of Justice

Carlos Felipe Uriarte, Assistant Attorney General for the Office of Legislative Affairs, U.S. Department of Justice

Moderator
Claire O. Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy; CERL Faculty Director, University of Pennsylvania

4:45 – 6:15 p.m.: The FISA Section 702 Reauthorization Debate: What’s at Stake?

George W. Croner, Senior Fellow, National Security Program, Foreign Policy Research Institute; formerly Operations Division, Office of General Counsel, NSA; CERL Advisory Council Member

Glenn S. Gerstell, Senior Advisor, International Security Program, CSIS; former general counsel of NSA and CSS (2015-2020)

Elizabeth Goitein, Senior Director, Liberty & National Security, Brennan Center for Justice

Ashley Gorski, Senior Staff Attorney, ACLU’s National Security Project

Moderator
Suzanne Spaulding: Senior Adviser for Homeland Security and Director of the Defending Democratic Institutions project, CSIS

REGISTER HERE

6:30 – 9:00 pm Invitation-Only Cocktail Reception and Dinner

Friday, October 6

This program has been approved for a total of 4.5 Ethics CLE credits for Pennsylvania lawyers. Attendees seeking CLE credit can make a payment via cash or check made payable to The Trustees of the University of Pennsylvania on the day of the event in the amount of $180.00 ($90.00 public interest/non-profit attorneys). In order to receive the appropriate amount of credit, evaluation forms must be completed.

Penn Carey Law Alumni receive CLE credits free through The W.P. Carey Foundation’s generous commitment to Lifelong Learning.

9:00 – 9:30 am Registration and Breakfast

9:30 – 10:45 am
Welcome | Session I (CLOSED)

Critical Issues in the FISA Section 702 Renewal Debate

This session will address fundamental issues in the reauthorization debate, including the FBI’s querying of the Section 702 database; the basic 4th Amendment framework applied to Section 702 by the courts; the role of the FISA Court (FISC); the nature of FISC proceedings; and the statutory framework in which the FISC operates. The panel will also examine the charge of critics that the FISC, as constituted, violates Article III’s “case or controversy” requirement, and that the court as such is unconstitutional. The government and many national security professionals insist, by contrast, that Section 702 is the most important tool the government has to counter foreign terrorism as well as to identify U.S. persons who are engaged in or otherwise furthering such overseas threats. Without FISA, many claim, it will become notably more difficult to protect the national security of the United States against foreign terrorism and government interference.

10:45 – 11:15 am Break

11:15 – 12:30 pm
Session II (CLOSED)

Objections to Reauthorization

In a truly odd pairing, both left-wing civil rights groups and Freedom Caucus Republicans in the House are opposed to the renewal of FISA Section 702. Among civil libertarians, views range from the claim that the program is simply unconstitutional because it violates the privacy rights of individuals to more moderate constitutional objections that maintain that the program obviates the warrant requirement of the 4th Amendment. Freedom Caucus members are similarly opposed to FISA 702, but in their case, it is on the grounds that the program represents the “weaponization” of the federal government trying to take power away from the people. A profound antipathy on the part of members of this faction can be traced in part to the role of FISA 702 in identifying contacts between the 2016 Trump campaign and Russia. This session will focus primarily on constitutional objections to FISA 702, particularly as articulated by the ACLU in recent months. It will survey the 4th Amendment history and consider the legal position of U.S. persons queries relative to that history. But it will also address Freedom Caucus objections to the program and consider whether the two sets of objectors share any common ground.

12:30 – 1:30 pm Lunch

1:30 – 2:45 pm
Session III (CLOSED)

Warrant Requirements and Other Compromise Proposals for Reauthorization

While the conflict between the national security professionals who generally favor reauthorization and the civil libertarian detractors who generally reject reauthorization rages on, both sides would do well to consider the stakes for national security. What types of reforms should be considered? How might they balance national security imperatives with protecting privacy rights and civil liberties? Would a warrant requirement for every query of U.S. persons’ identifiers address the opponents concerns about reauthorization, as many have maintained? What would the government lose by having to seek a warrant for each U.S. person query, even if it is not strictly constitutionally required? Would such a requirement pose an insurmountable obstacle to the benefits 702 currently provides? Or would a warrant requirement help to achieve reauthorization at only modest cost to the effectiveness of the program? Is it a policy question for Congress that FISA allows the government to collect communications on U.S. persons if it pertains to foreign policy information? Should Congress allow the executive branch to access this information without a 4th Amendment search warrant?

2:45 – 3:15 pm Break

3:15 – 4:30 pm
Session IV (CLOSED)

Intelligence Collection in a Post-FISA World

If FISA 702 were to sunset at the end of the current calendar year, what would be the state of intelligence collection on overseas threats in its wake? Which of the remaining tools possessed by intelligence agencies could fill the gap left by 702? At this moment in U.S. history, that question must be asked not only with respect to overseas threats, but also with respect to increasing domestic extremism, often supported or encouraged by overseas organizations that would benefit from the radicalization of U.S. persons. Does the strong 4th Amendment model on which privacy and the presumption of innocence have depended currently serve the needs of U.S. law enforcement and counter-terrorism efforts in the face of increasing civil threats within the U.S., produced in conjunction with foreign adversaries of the U.S.? Are there other ways to ensure the protection and liberties of U.S. persons that would not unduly tie the hands of U.S. agencies responsible for surveillance on foreign nationals? What might some of those alternative protections look like? What is the optimal balance between personal liberty and societal threat protection at this time? As both overseas and domestic threats continue to grow, are we certain that the American constitutional tradition is compatible with protecting U.S. democracy against its formidable enemies both abroad and at home?

4:30 – 5:00 pm Closing Remarks

Keynote

Thursday, October 5, 2023

Keynote
4:30 – 6:00 pm