NSA director urges Congress to renew controversial intelligence authority

NSA Director and head of U.S. Cyber Command Gen. Paul Nakasone said in remarks on Thursday that intelligence authorities up for renewal later this year have played a key role in protecting the United States against cyberattacks.

Nakasone’s remarks at a virtual meeting of the Privacy and Civil Liberties Oversight Board offered a preview of what is expected to be an intense political fight later this year to renew Section 702 of the Foreign Intelligence Surveillance Act — a law that provides U.S. intelligence agencies wide-ranging authorities to conduct surveillance of foreign persons located abroad and which civil liberties advocates argue is in desperate need of greater transparency.

Section 702 will expire at the end of the year unless Congress acts, and on Thursday Nakasone made the case that “the authority plays an outsized role in protecting our nation.”

“We have saved lives because of 702,” Nakasone said, adding that the law has been used to counter ransomware threats, including those against critical infrastructure and a foreign operation trying to steal sensitive U.S. military information.

The political fight over reauthorization has yet to heat up, but as the newly elected Republican majority seeks to investigate federal government probes of former President Donald Trump and his associates, the renewal of Section 702 could emerge as a central flashpoint between the GOP and national-security agencies.

NSA General Counsel April Doss and Mike Herrington, the FBI’s senior operations advisor for FISA Section 702 reauthorization, said in remarks at the Thursday event that the law is a key tool in combatting growing cyber threats but were vague on details regarding operations the law has enabled, instead offering to brief PCLOB members in a classified setting.

While Section 702 was designed to conduct surveillance of foreign persons abroad and foil terrorist plots, Herrington described the law as “substantial and important” in identifying U.S. victims of foreign intelligence operations and cybercrimes.

As national security officials press for Section 702’s renewal, privacy advocates want more information about how the law is being used in order to draw up appropriate safeguards.

“We need actually more information about how cyber is being used in the first place to adequately narrow down what type of protections may need to be placed,” Jeramie Scott, a senior counsel at the Electronic Privacy Information Center, said at Thursday’s conference. “It’s sort of a black box right now for the public in terms of the scope of cyber, the privacy and civil liberties implications of cyber.”

Intelligence officials expressed an openness to discussing reforms but stressed that retaining the authority’s efficacy was a top priority.

“It would be pretty much infeasible to review the totality of our cyber-related investigation every time that there’s a cyber incident, even if you’re only considering those that do meet the query justification,” said Herrington.

PCLOB was established by Congress in 2004 in response to a recommendation of the 9/11 Commission Report and made an independent agency in 2007. The board serves as a watchdog to ensure that the federal government’s national security powers do not trample on privacy rights and civil liberties.

The board has been hamstrung in recent years by the lack of a quorum, but with the board now at a full complement of members it’s poised to play an important role in renewal discussions regarding intelligence authorities and is expected to release a set of recommendations about the future of U.S. surveillance law in the spring.