June 27, 2017

Adam Klein before the Senate Committee on the Judiciary

Principal Findings

  • Section 702 is a valuable intelligence tool that is legitimate in its basic contours and subject to adequate oversight and transparency in most respects. It should be reauthorized with existing statutory authorities intact.
  • The government’s implementation of Section 702 has already undergone significant reform since Congress last reauthorized the FISA Amendments Act in 2012.
  • Targeted reforms to enhance transparency, oversight, and accountability could strengthen public trust without harming national security.
  • Congress should be careful to avoid changes that would reduce Section 702’s operational utility, increasing the risks of future terrorist attacks. In particular, Congress should not require agencies to obtain a court order in order to query data already collected under 702.

Key Recommendations

  • Reauthorize Section 702 with existing statutory authorities intact.
  • Mandate that the Foreign Intelligence Surveillance Court appoint a cleared amicus curiae in every review of an annual certification under Section 702.
  • Ensure full implementation of Recommendation 9 from the Privacy and Civil Liberties Oversight Board’s report on Section 702, including public disclosure (to the extent consistent with national security) of the resulting data about the collection and use of U.S.-person information under Section 702.
  • Require the Justice Department to provide greater detail about which “serious crimes” the government would use 702 information to prosecute, and about how it determines whether evidence introduced in a criminal proceeding is “derived from” 702.
  • Consider targeted reforms to deter leaks of U.S.-person information derived from foreign-intelligence intercepts and to enhance oversight of politically sensitive unmasking requests.

The full testimony is available online.

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