Sending Office: Honorable Adam B. Schiff
Sent By:
jeff.lowenstein@mail.house.gov

Dear Colleague:

I write to inform you that I will oppose the Amash amendment to Defense Appropriations bill (Amash #90), and to ask that you do so as well. This amendment will introduce significant uncertainty regarding the Intelligence Community’s (IC) vital activities
under Section 702 of the Foreign Intelligence Surveillance Act — and may require temporary cessation of some important collection. These losses would not be offset by a meaningful increase in protecting the privacy interests of the American people. 

Section 702 authorizes the targeting of communications of foreigners located outside the United States. There is no debate that it is a critical authority for foreign intelligence collection and counterterrorism, which is why in 2018 a bipartisan majority
reauthorized Section 702 with additional reforms and protections for the privacy and civil liberties of Americans.

The amendment would deny funding for the Section 702 program unless the Intelligence Community makes three representations to the Foreign Intelligence Surveillance Court that could be disruptive of the program or are redundant of existing law: 

  • The first involves “reverse targeting,” which is already prohibited by existing law. By introducing new “significant purpose” language to the prohibition, the amendment would introduce confusion in the application of existing law that could have
    a chilling effect on lawful intelligence collection. For instance, under the amendment, if the Intelligence Community were to become aware of an overseas target’s communications with someone in the United States through lawful 702 collection, they may have
    to stop collection on the overseas target in a manner that is directly contrary to our national security interests.
  • The amendment prohibits collection of so-called “abouts” communications, meaning ones that are not to or from a foreign intelligence target, but mention that target. The IC ceased to do “abouts” collection on its own in 2017. But under a compromise reached
    during the 2018 reauthorization of Section 702, the IC may be permitted to resume this collection, but only after providing 30 days notice to Congress and satisfying Congress that the IC is taking necessary steps to protect privacy. The amendment would
    prohibit “abouts” collection even if the IC is able to devise rigorous safeguards and satisfies Congress’s requirements before re-initiating.  The IC should not be banned from collecting intelligence in a fashion that protects privacy, if it can devise
    an appropriate means of doing so. 
  • The final provision prohibits the collection of domestic communications, which is already prohibited by existing law.

Taken together, these changes could have an immediate and negative impact on the core of the 702 program, and may require its temporary cessation while the IC worked to understand and comply with the amendment’s language. The 702 program is already subject
to extensive oversight (including by Congress, DOJ and DNI attorneys, inspectors general and compliance personnel, and the Privacy and Civil Liberties Oversight Board); and by the judiciary, including the Foreign Intelligence Surveillance Court.

Should Members of Congress seek to modify the operations of the 702 program, the committee process provides a good way to do so with ample opportunity to examine and refine potential changes, but to make significant changes in the operation of such a core
national security authority through the Appropriations process is a perilous path. For that reason, I urge members to oppose the amendment when it comes to a vote.

If you have any questions, please contact the House Permanent Select Committee on Intelligence at 5-7690.

Sincerely,

Adam B. Schiff

Chairman, House Permanent Select Committee on Intelligence

 

Related Legislative Issues

Selected legislative information: Appropriations, Intelligence, Judiciary

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