January 23, 2018

Congress Just Made Bipartisan Progress Against Terrorism

By Richard Fontaine

Last year brought news both good and bad in the fight against terrorism. On the positive side, the Islamic State’s brutal “caliphate” has virtually collapsed under a U.S.-led military campaign, and large parts of Iraq and Syria are free of its tyranny. At the same time, terrorist attacks in New York City and in Europe reminded all that the terrorist threat to the United States and its allies persists.

Mindful of recent victories and enduring challenges, Congress last week reauthorized one of the U.S. government’s most important intelligence tools in the fight against terrorism. Section 702 is on its face as obscure as it sounds—a recent addition to the 1978 Foreign Intelligence Surveillance Act, or FISA. In practice, it allows the government to collect the electronic communications of non-Americans located overseas if they are involved in terrorism or other activities affecting U.S. security. By reauthorizing Section 702, and by adding additional limits on how the law can be used, Congress moved to keep the nation safe while protecting Americans’ privacy and civil liberties.

The need for Section 702 grew out of changes in communications technologies. In its original form, FISA required court approval every time the government wanted to surveil a foreign spy, terrorist, or other agent of a foreign power on U.S. soil. With the Internet, however, digital messages flit across the globe with little regard for borders. When the messages of a terrorist overseas might be stored in a server here—or move through cables in the United States en route to somewhere else—FISA’s distinction between domestic and foreign surveillance blurred. In 2008, Congress added new provisions, including Section 702. Under its authority, the government can conduct U.S.-based surveillance of a terrorist in Yemen, or a Russian spy in Moscow, without getting a court order for every target.

Read the full commentary in Fortune.

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