"Don't Fall for the Hype" about the FISA law. How Section 702 really works.

This is by a Yale professor who has analyzed the FISA bill.

I think progressives who are anxious to hop on the Rand Paul train are making a mistake. Many of DT's supporters ALSO want the current law not to be renewed, because they think it unfairly allowed surveillance on people like Mike Flynn and possibly DT himself.

Asha Rangappa

Senior Lecturer at Yale’s Jackson Institute for Global Affairs. She served as an FBI counterintelligence agent from 2002 to 2005. Follow her on Twitter (@AshaRangappa_).

https://www.justsecurity.org/47428/dont-fall-hype-702-fbi-works/

All the cool kids these days oppose the FBI’s so-called “backdoor search loophole,” which allows it to query information obtained under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Lawmakers have jumped on the bandwagon: As Section 702 approaches its end-of-the-year expiration date, some members of Congress have introduced renewal legislation that would require the FBI to obtain a search warrant supported by probable cause before the FBI can view the contents of these communications.

At first glance, this might seem perfectly reasonable. Unfortunately, though, this proposal – like almost of all critiques of the FBI’s use of 702 data – rest on incorrect factual premises of how 702 data is actually obtained, maintained, and accessed by the FBI, and on a lack of understanding of how FBI investigations work in general. This gap in understanding can have devastating consequences for both existing and new FBI cases. Let me tell you why.

SNIP

The truth is that few 702 “hits” are likely to come from over-the-transom tips like the one described above. They are more likely to come in the course of investigating new leads in already-open cases on criminal enterprises, terrorist networks, or foreign intelligence activity – the kinds of cases where contacts with foreign targets are most likely to occur. Even as I write this, I have no doubt that the agents working on the investigation into Russia’ interference in the 2016 election are relying at least in part on 702 data provided to the FBI to establish links between individuals in the United States and ongoing Russian counterintelligence investigations. Nevertheless, regardless of where in an ongoing investigation a new lead surfaces, an agent will always begin with a DIVS query – it is the initial building block of FBI investigations.

A search warrant requirement for the FBI to view the contents of 702 data returned in the course of a standard investigative query would stymie cases like Mueller’s and other investigations currently open in the FBI. Most importantly, it would leave the FBI in a position where one hand is unaware of what the other is doing, even within its own agency. This was precisely the kind of situation – known then as the “wall” – that led to the intelligence failures of 9/11 and that the Intelligence Community, under presidents of both parties, has sought to break down since. Adding unnecessary hurdles, based on a mischaracterization of the FBI’s handling of this data and rudimentary understanding of its investigative process, would resurrect a new, and very dangerous, “wall” in the FBI.