Asst. Attorney General Olsen: ‘reauthorization of 702 … most consequential national security decision that this Congress will make’

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By Steve Schuster

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Assistant Attorney General Matthew G. Olsen delivered opening remarks before Senate Judiciary Committee on Section 702 of the Foreign Intelligence Surveillance Act.

Section 702 is a key provision of the FISA Amendments Act of 2008 that permits the government to conduct targeted surveillance of foreign persons located outside the United States, with the compelled assistance of electronic communication service providers, to acquire foreign intelligence information, according to the Office of the Director of National Intelligence

“As you have just heard, Section 702 is invaluable. The reauthorization of 702 is perhaps the single most consequential national security decision that this Congress will make. The stakes could not be higher,” Olsen said.

Congress enacted Section 702 as part of a number of fundamental legal reforms following 9/11.

“Those attacks demonstrated that we must one, share intelligence and two, that we must eliminate walls between foreign intelligence and domestic law enforcement,” Olsen said noting he was part of the team at the Department of Justice in 2008 that worked with Congress to pass Section 702. Congress then recognized that FISA, as written, created a dangerous intelligence gap — and enacted 702 on a bipartisan basis, he said.

Olson pointed out that when Congress passed 702, it also included a number of American safeguards.

“The law, for example, prohibits targeting anyone inside the United States or a U.S. person anywhere in the world. The FISA court reviews Section 702 procedures every year to ensure that they comply with the Constitution and with FISA. And the National Security Division, which I lead, reviews every single targeting decision that is made,” Olson said.

702 protects national security and safeguards civil liberties, he added.

“So, let me address one area of particular concern, and that is the FBI’s use of 702 information. To use the intelligence that the IC collects lawfully, agents and analysts “query” the database of FBI information — this is the small subset of 702 data that is relevant to open FBI national security investigations. A query simply means using a term to retrieve specific information that already is in the FBI’s possession. It is like searching for something in your email inbox — you don’t read every single email. You probably enter a keyword to find what you’re looking for quickly within what is already stored in your inbox. And the FBI’s ability to do this – to conduct these queries – is absolutely essential to its mission,” Olson said.

Olsen then provided an example.

“If the FBI learns that a spy working for the PRC has a list of U.S. phone numbers on their phone, FBI investigators may query FBI 702 data with those phone numbers – some of them may be U.S. phone numbers – to help identify others working for the PRC or even potential victims of PRC espionage. And this is not just hypothetical. The FBI, in fact, was able to disrupt ongoing assassination and kidnapping plots in, in part, because FBI investigators searched their 702 data with U.S. person identifiers and they were able to, therefore, quickly discover the nature and extent of the plotting,” Olson said.

In another example, Olson said, “the FBI was investigating a cyberattack against a critical infrastructure company here in the United States. The FBI queried its Section 702 data with U.S. person identifiers, and they found out that it was Chinese hackers who were behind the attack, and that they had comprised the network and they figured out how they did it. It was this information that the FBI got from querying its data that allowed the FBI to alert the network operators and mitigate the attack.”

“Ultimately, the FBI is the single organization represented here with the responsibility and the authority to take action inside the United States to protect our national security — whether that’s to identify and disrupt terrorism attacks, espionage, or cyber threats. And the FBI’s ability to quickly review its Section 702 data is an essential tool for that mission. The FBI, however, must safeguard the rights of Americans. In recent years, we have identified and reported serious compliance issues with FBI’s U.S. person queries,” Olson added.

Olson also noted “The FBI is imposing new measures for compliance and new measures for accountability. And we are continuing to review the FBI’s performance for ways to improve. We are committed to working with you and with the rest of Congress on potential reforms. As we work with you on this effort, we must ensure that any changes we make also preserve Section 702’s essential effectiveness as a national security tool.”

In conclusion, Olson said, “In the end, we must not forget the lessons of 9/11. Unduly limiting the FBI’s ability to access lawfully collected information and imposing artificial barriers between foreign intelligence and criminal investigations will set us back decades. It will put our nation at grave risk. Section 702 has proven to be an irreplaceable authority that enables our entire intelligence community to work together to collect, to share and to use the information that is necessary to protect our country.”