Six years ago this week I received the worst phone call of my life, informing me that my 19-year-old son had died from an accidental overdose of fentanyl-laced heroin on his fourth day of college. He is now one of hundreds of thousands of Americans who have perished at the hands of this scourge, not to mention its enormous economic impact on our nation.
This tragedy didn’t have to happen. Societal stigma, gaps in mental health and addiction treatment, and a lack of understanding of the disease of substance dependence set this young "warrior against addiction" up for failure on the demand side of the equation.
But he was also let down on the supply side: the fentanyl that killed him should never have been on the street. Had a key surveillance authority used by our nation’s intelligence community been fully applied to the fentanyl crisis that began gripping our nation around the time of Jonathan’s death, that fatal dose might have never reached him.
Section 702 of the Foreign Intelligence Surveillance Act was enacted by Congress in 2008 to close pre-9/11 gaps and ensure America could effectively collect intelligence on foreign persons located overseas and keep pace with the evolving electronic communications methods used by those who would do our nation harm.
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This provision permits the U.S. government to conduct lawful targeted surveillance of foreign persons located outside the United States, and allows the government to require electronic communications service providers to provide that collection.
Sometimes, in the process of examining collections on these non-U.S. persons, relevant information emerges that indicates the target communicated either with or about a U.S. person. In these cases, specially authorized intelligence officials are permitted to conduct a query to determine whether that U.S. person could be either a victim or an accomplice of the suspicious foreign person. In the case of fentanyl, Section 702 could alert officials to a drug cartel working with a U.S. person, but the targeted collection of that person’s communications would generally require a warrant.
Unless Section 702 is renewed by Congress, as it has been twice before, it will expire in December. However, as if there were not enough divisive issues within our nation’s body politic at the moment, the renewal of this important tool used by the intelligence community to protect our nation is now being challenged from both ends of the political spectrum.
The avoidable loss of my son is not the only factor that brings this issue before me. I chair the non-partisan President’s Intelligence Advisory Board (PIAB), which helps ensure our nation’s intelligence community has the technology, tradecraft, and authorities it needs to best serve the American people. I also chair the Intelligence Oversight Board (IOB), which is tasked to determine whether any errors made by the community represent a trend requiring corrective action. These two positions give me a front row seat on the importance of renewing Section 702.
I understand and agree with the concerns a free society should have regarding any type of surveillance authority. As such, it is right and proper that we challenge Section 702 in two ways. First, we should ask whether it provides real value in protecting our nation’s security. Second, we need to know that proper safeguards are in place to ensure it is executed in accordance with our constitution, laws, and values. Then we need to decide whether the provision’s intelligence value offsets the potential for situations—hopefully rare if the right safeguards are in place and working—in which misapplication of the authority could occur.
We on the PIAB and IOB were tasked by the President this spring to critically examine these questions. The President released our redacted report in July—something that has only been done once before by a president—in which we reached two very important conclusions.
First, Section 702 is an absolutely vital tool used by our intelligence community to protect our nation in an age where communications have evolved so quickly. It informs a very high percentage of U.S. intelligence activity. It has saved American lives, prevented cyberattacks, helped catch spies, aided weapons counter-proliferation, and, in a limited application under existing certifications, helped interdict fentanyl traffickers.
There is, however, no dedicated authorization to target the foreign manufacturers and distributors of fentanyl and other synthetic drugs, which could help illuminate the production and supply chains that underpin this illicit trade. Therefore, we recommended the addition of a specific counter-narcotics "certification," which would allow even more collection about foreign fentanyl traffickers that is currently possible.
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Second, now that Section 702 has passed into adulthood, we better understand how to tighten up its execution in order to maintain privacy protections for Americans whose communications may be incidentally collected if they are in contact with overseas foreign targets of Section 702. Some needed reforms have already been taken by the FBI. We recommended additional steps in our report to the President that should restore the American people’s confidence that the authority will be used with the proper care. In our discussions with senior and mid-level FBI personnel, it’s abundantly clear they are determined to get this right.
When Section 702 was first enacted, our nation was still grieving the terrorist attacks of 9/11. Today, roughly every two weeks illegally imported fentanyl claims the same number of American lives as perished on that infamous day. As a result, like too many other Americans, I grieve every day over the fact that my son lost his battle with the disease of addiction because a foreign actor chose to profit from smuggling synthetic drugs into our country. That’s why I believe that, among its other important purposes, Section 702 authority should be used more, not less, to help interdict those drugs.
As we stated in the PIAB/IOB report, "if Congress fails to reauthorize Section 702, history may judge [its lapse] as one of the worst intelligence failures of our time." Let’s set politics aside and protect our nation from all threats, including illicit synthetic drugs, while also holding true to our belief in civil liberties.
