APRIL 11, 2024 – The Defense Department’s top cyber official credited a key provision of the amended Foreign Intelligence Surveillance Act with keeping Americans and the DOD safe from foreign adversaries during testimony at a Senate Armed Services Committee posture hearing yesterday.
Air Force Gen. Timothy D. Haugh, who serves as commander of U.S. Cyber Command, director of the National Security Agency and chief of the Central Security Service, referenced Section 702 of the FISA Amendments Act of 2008 during his opening remarks.
“Since … elevation to a unified combatant command in 2018, Cyber Command has worked hard to make the most of its resources, authorities and support,” Haugh said. “Of those authorities, none is as vital to national security and the command as Section 702 of the Foreign Intelligence Surveillance Act, which is essential for identifying malicious cyber actors in protection of the nation and the Department of Defense.”
Section 702 grants the government the ability to acquire foreign intelligence information by conducting targeted surveillance of foreign persons located outside of the United States.
When asked to give a real-world example of how Section 702 is used to protect America and its citizens, Haugh explained how the provision is a valuable resource in tracking fentanyl supply chains from China to Mexico.
“[Section 702] allows us to connect dots from the precursors as they start in China, and all the way through to the potential criminal organization,” said Haugh. “We have produced significant amounts of reporting that allow law enforcement to now look at that from a targeted perspective — leveraging the data we’ve created in foreign intelligence outside the United States — to be able to then take action to limit risk to the American people.”
During the hearing, one committee member asked Haugh to address possible public concerns and/or mistrust over Section 702 by clarifying exactly “what is legal and what is not legal to be collected under 702 provisions.”
“This is the most transparent intelligence authority we have,” Haugh responded, adding that Section 702 is built with protections for the American people and that only foreign intelligence targets operating outside the United States may be authorized for collection.
“This authority cannot be used to collect against Americans,” Haugh emphasized, adding that intelligence-based information is queried in such a way as to ensure that any data on U.S. citizens that may have been incidentally collected is not brought into any reports.
When it comes to cybersecurity, Haugh provided one example of how U.S. citizens might be tied to Section 702, though only tangentially and not as a target of surveillance.
“If we see China attempting to hack something in the United States … and we see that there’s a U.S. company that is the target … we would then query on that company,” to attempt to identify what’s being attacked, and to notify the target as quickly as possible, Haugh said.
Haugh then elaborated on the previously mentioned protections built into the provision.
“[Section 702] allows us to ensure the privacy of Americans; and it has oversight built in from the executive branch, the legislative branch and from the courts to ensure that we’re using it properly,” he said, adding that there is language in the current bill before Congress that will mandate civil and criminal penalties for any misuses of Section 702.
“It is our Americans that serve every day in the national defense of the American people,” said Haugh. “And that includes their civil liberties [and] their privacy; and we will continue to be transparent about how we use this authority to defend Americans every single day [with intelligence] collection against China, against Russia, counterterrorism threats and cyber threats that face the nation every single day.”
Section 702 of FISA is currently set to expire on the 19th of this month, though many of the committee members attending today’s hearing expressed optimism that the provision will be renewed before then.
By Matthew Olay, DOD News