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As part of a virtual roundtable discussion with the Privacy and Civil Liberties Oversight Board (PCLOB), GEN Paul M. Nakasone, Commander, USCYBERCOM, Director, NSA/Chief, CSS, recently provided keynote remarks to help inform the panel and discussions surrounding the forthcoming congressional debates on whether to renew FISA Section 702 in December.
The collection authority FISA Section 702 was created in part to address a rapidly changing communications and technology landscape. Many of the Nation’s most critical foreign intelligence targets located outside of the United States use U.S. infrastructure and services to communicate.
FISA Section 702 authorities allow the Agency to collect intelligence on some of the highest-priority foreign intelligence targets.
“FISA Section 702 is irreplaceable,” GEN Nakasone said. “It is focused and limited, yet agile enough to address national security threats in an ever-changing technological and threat environment.”
The Director explained that since FISA Section 702 was enacted in 2008 to counter foreign terrorist threats in the aftermath of 9/11, the national security threat environment has evolved substantially.
“Our focus has shifted from counterterrorism to strategic competition,” he explained. “In the two decades since 9/11, we have seen the People’s Republic of China evolve as America’s primary geopolitical challenge.”
GEN Nakasone outlined how FISA Section 702 has helped the U.S. Government understand the strategic intentions of the Peoples Republic of China (PRC), Russia, Iran, and the Democratic People’s Republic of Korea. He also shared that the U.S. Government was able to identify multiple foreign ransomware attacks on U.S. critical infrastructure using FISA Section 702 data.
“This intelligence positioned the government to respond to and mitigate these events, and in some instances prevent significant attacks on U.S. networks,” he said.
Another recent example included the Intelligence Community (IC) using information from 702 to discover that a foreign adversary had used a cyberattack to acquire sensitive information related to the U.S. military.
“Harkening back to the counterterrorism origins of the authority, FISA Section 702 information contributed to a successful U.S. Government operation against one of the last remaining 9/11 architects, Ayman al-Zawahiri,” GEN Nakasone added.
He also emphasized that civil liberties and privacy are central to the implementation of FISA Section 702.
“The law was designed with safeguards to protect the rights of the American people and our allies,” he said.
Under FISA Section 702, both national security and civil liberties and privacy are preserved and protected, the Director said.
“It is an ‘and’ not an ‘or’ that connects these two important goals. Neither is compromised for the other,” he added.
Following GEN Nakasone’s keynote, NSA General Counsel April Doss joined the panel to discuss NSA’s use of FISA Section 702.
Doss emphasized the culture of compliance at the Agency, which she described as a deep respect for the U.S. constitution and a commitment to the rule of law.
“I am extraordinarily proud of NSA’s commitment to compliance and to the law, particularly with regard to 702 activities,” she said.
The forum also featured representatives from the FBI and the Office of the Director of National Security, as well as civil liberty experts who shared their insights and potential concerns over the continued use of FISA Section 702.
Doss acknowledged that the Agency has a responsibility to address those concerns through continued discussions with stakeholders.
“We must show and explain to the American people how the Government not only strives to achieve its national security interests, but how protection of constitutional rights and civil liberties is woven into the fabric of NSA’s use of the authority provided by Section 702,” she said.
According to GEN Nakasone, over the next year the Agency will work with the IC to ensure Congress and the public have a clear understanding of both the immense value of FISA Section 702 and the civil liberties and privacy protections built into the authority.
“702 authorities provide exquisite foreign intelligence that is focused on non-U.S. persons outside the United States and specific, invaluable insights that protect our Nation — intelligence that cannot be obtained through other means,” he said.
The Director concluded by thanking the PCLOB for the opportunity to talk about FISA Section 702.
“I look forward to forthcoming discussions,” he said.
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