Washington, D.C. – House Judiciary Committee Chairman Bob Goodlatte (R-Va.) today delivered the following remarks during the House Judiciary Committee’s unclassified hearing on Section 702 of the Foreign Intelligence Surveillance Act.
Chairman Goodlatte: Today’s unclassified hearing follows a classified panel in which Members of the Judiciary Committee heard testimony from the Federal Bureau of Investigation, National Security Agency, Department of Justice, and the Office of the Director of National Intelligence regarding the operations and constitutionality of Section 702 of the Foreign Intelligence Surveillance Act, or “FISA.” In February 2016, the Judiciary Committee held a classified hearing that began our consideration of the reauthorization of the FISA Amendments Act, which was first signed into law in 2008 and reauthorized in 2012. Our hearing last year served as a good background and foundational update on the status of national security operations under the law. Much has happened since the law was last reauthorized, however, including the unauthorized disclosures of classified information by Edward Snowden in 2013 that spawned significant public debate on U.S. government surveillance. We also have many new Members who have not yet had an opportunity to directly question experts regarding the statute’s successes or areas where reform may be needed. Finally, we have very recent jurisprudence upholding the statute’s constitutionality. Like congressional oversight, judicial oversight of this program is an integral safeguard, so exploring various courts’ legal analyses concerning 702 will be beneficial for our own oversight, as well.
Congress enacted FISA in 1978 to establish statutory guidelines authorizing the use of electronic surveillance in the United States for foreign intelligence purposes. Following enactment, global communications infrastructure shifted from satellite to fiber-optic wire, altering the manner in which domestic and foreign communications are transmitted. This technological shift had the adverse and unintended effect of requiring the government to obtain an individualized FISA court order to monitor foreign communications by non-U.S. persons. The government had to obtain probable cause to investigate a foreign national located overseas, an untenable proposition that served to extend rights under the U.S. Constitution extraterritorially and limit lawful U.S. intelligence activities.
In 2008, the FISA Amendments Act corrected this anomaly by establishing procedures for the collection of foreign intelligence on targets located outside U.S. borders. At its core, Section 702 of the Act permits the Attorney General and the Director of National Intelligence to jointly authorize the targeting of non-U.S. persons reasonably believed to be located outside the United States.
As an important safeguard, the Act prohibits the use of Section 702 to intentionally target a person inside the United States and forbids so-called “reverse targeting” – using Section 702 to target a person outside this country if the true purpose of the acquisition is to target someone inside the U.S. Furthermore, the government may not acquire a communication to which all parties are known to be inside the U.S., and all Section 702 acquisitions must be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States.
Section 702 also prohibits the intentional targeting of a U.S. person outside the United States. Instead, Sections 703 and 704 of the Act preserve Fourth Amendment protections for U.S. citizens by requiring the government to obtain an individualized order from the FISA Court, known as the “FISC,” to acquire U.S. persons’ communications while they are outside the United States.
America’s intelligence community has deemed Section 702 its most important tool in battling terrorism. However, it has also been criticized by some as an overly broad program that collects communications of U.S. citizens without sufficient legal process. Today’s classified and public panels afford members an opportunity to examine Section 702 collection in greater detail and probe the aspects of this important collection with which they may be concerned.
The Judiciary Committee has primary jurisdiction over FISA. During committee consideration of the USA Freedom Act, I made a commitment to Members that the Committee would separately undertake fulsome oversight of the FISA Amendments Act, which is slated to expire on December 31st of this year. This hearing is the first step of this Congress toward a detailed, thorough, and careful examination.
I thank all of our witnesses for testifying today. These individuals represent multiple viewpoints to ensure that this is a well-rounded debate that gives voice to diverse stakeholders.
We must ensure that our protection doesn’t come at the expense of cherished liberty. Every single one of us who has promised to uphold the Constitution has a duty to ensure that surveillance authorities are crafted and employed in a manner consistent with our oath and the expectations of all Americans. Strong and effective national security tools like Section 702 and civil liberties can and must coexist.
For more on today’s hearing, click here.