Section 702 Surveillance Faces Crossroads with Uncertain Reauthorization
A track record of illegal spying on Americans could imperil surveillance of foreign nationals that the Central Intelligence Agency says is critical to blunt fentanyl trafficking into the United States.
According to the CIA, Section 702 of the Foreign Intelligence Surveillance Act (FISA), adopted after the 9/11 attacks, is used to monitor overseas supply lines of fentanyl – from smuggling precursor chemicals from China to clandestine blending facilities in Mexico.
The spy agency says surveillance has confirmed China’s role in fentanyl production, helped recruit spies, flagged supply chains and disrupted fentanyl smuggling across the U.S. border. A synthetic opioid, fentanyl kills more Americans than all other illicit drugs combined.
“Section 702 is the only source of information that allows us to stay dynamic in thwarting the threat,” an intelligence official told McClatchy reporters. “It gives us insight into the quantities and potency of some of the drugs produced. It’s given us insight into specific smuggling techniques the networks use to avoid detection. If we were to lose it, it would make us blind.”
Political Pushback on Section 702
On Capitol Hill, both Democrats and Republicans have expressed concerns about the use of Section 702 surveillance, which could block or delay its reauthorization. Significant reforms have been proposed, but may be difficult to pass before year’s end when its authority expires.
Democrats say spying on communications between U.S. citizens and foreign sources is an illegal backdoor to warrantless surveillance. Civil liberty advocates question the legality of collecting information for counter-narcotics operations under Section 702.
Alleging the political weaponization of FISA, Republicans point to documented abuses, including surveillance of the Trump campaign in 2016 based on false information. They also point to the Obama administration secretly securing approval from a FISA court in 2011 to search American communications with foreign individuals without warrants, which were revealed in disclosures by Edward Snowden, the former National Security Agency contractor who fled overseas.
FISA Background and Abuse
Enacted in 2008, FISA must be reauthorized before the end of the year to prevent Section 702 from expiring. Section 702 was last reauthorized in 2018. Shortly after reauthorization, an FBI inspector general published a report outlining systemic abuse of Section 702, including a warrant to surveil Carter Page, a Trump foreign policy adviser in 2016.
In May, a FISA court unsealed a memorandum indicating the FBI had misused Section 702 more than 278,000 times, including for George Floyd protestors, January 6 assault suspects and donors to an undisclosed congressional candidate. The May disclosure also indicated the FBI has come into compliance with national security law guardrails.
The President’s Intelligence Advisory Board issued a report in July noting Section 702 was in jeopardy of not being reauthorized. “Complacency, a lack of proper procedures and the sheer volume of Section 702 activity led to FBI’s inappropriate use of Section 702 authorities, specifically U.S. person queries,” the report said. The report also said it “found no evidence of willful misuse of these authorities by the FBI for political purposes”.
Some Republicans disagree. “It’s evident the FBI has been weaponized, and it’s far past time for reforms after the FBI has repeatedly used their power to go after political opponents,” says Senator Eric Schmitt, R-Missouri.
Section 702 and Fentanyl
The wild card on FISA reauthorization is the CIA’s use of Section 702 to combat the fentanyl epidemic. “We’re dealing with a very deadly threat in fentanyl,” says Under Secretary of Homeland Security for Intelligence and Analysis Kenneth Wainstein. “It’s horribly lethal. Its trafficking is incredibly lucrative. The Mexican drug-dealing cartels are heavily involved with deadly efficiency, and they don’t care about the human results.”
“When you put those things together, that makes for a very dangerous threat to our nation, to our people, to our national security,” Wainstein explains. “It’s a threat that has come to the fore that we didn’t have to deal with in the past.”
Previously, drones could monitor when opium poppies or coca plants could be harvested and converted to heroin or cocaine. Fentanyl poses a different type of challenge as precursor chemicals are shipped along with other commodities, then mixed by cartels in basements and apartments before slipping through border controls into the U.S. market for street drugs.
“Section 702 is the only source of information that allows us to stay dynamic in thwarting the threat. If we were to lose it, it would make us blind.”
Proposed Section 702 Reforms
Despite bipartisan concerns, there also is grudging willingness by Congress to reauthorize FISA with reforms, such as creating a designated FBI compliance officer and establishing an independent review office that reports directly to the President. Reforms also may include compelling the Justice Department to remove the FBI’s authority to search Americans’ names using Section 702 data for evidence in crimes unrelated to national security threats.
Lawmakers may decide to give specific authority for Section 702 surveillance on counter-narcotics operations. “Under current authorities, there are circumstances in which intelligence collection on foreign narcotics traffickers is authorized,” according to a CIA official. New authority could broaden the power of intelligence agencies to monitor secondary as well primary players in the fentanyl trade.
CIA officials believe “the reliance of transnational criminal organizations, hostile government actors, terrorist groups and drug cartels on U.S. communications platforms provides a strategic advantage to the United States that would be foolish to waste”. They noted as much as 60 percent of the President’s daily briefing on national security relies on information secured through Section 702 surveillance.
[This blog post relied on original reporting by McClatchy reporters.]