HomeBureau of Intelligence and ResearchRemarks & Releases...Remarks by INR Assistant Secretary Brett Holmgren on US Diplomacy and FISA Section 702 at the Center for Strategic and International Studies

# 									Remarks by INR Assistant Secretary Brett Holmgren on US Diplomacy and FISA Section 702 at the Center for Strategic and International Studies							

Remarks

Brett M. Holmgren, Assistant SecretaryBureau of Intelligence and Research

Center for Strategic and International Studies

Washington, D.C.

May 30, 2023

I want to thank CSIS for hosting today’s event. For decades, CSIS has been at the forefront of providing cutting edge research and solutions to some of the most complex and consequential policy issues of our time. And they conduct their work in an objective, non-partisan manner that resonates with those of us in the Intelligence Community (IC) who are guided by these same principles. So it’s only fitting that today’s discussion is taking place at CSIS. It’s an honor to be here.

Since the founding of our Republic, intelligence has advanced American interests in the world. During the Revolutionary War, General George Washington relied on intelligence to inform battlefield maneuvers and strategy. During the Civil War, Union forces established the first organization to produce formal intelligence assessments. And in World War II, the legendary Bill Donovan, head of the Office of Strategic Services, established the Research and Analysis Branch – the predecessor to the State Department’s Bureau of Intelligence and Research, or INR – to identify vulnerabilities of the Axis powers.

For 77 years, INR, the organization I am proud to lead, has been able to carry on that legacy of providing US diplomats with strategic insights because we are able to rely on access to intelligence collected and produced by other agencies. Like many of the 18 U.S. intelligence agencies, INR is a consumer – not a collector or producer — of intelligence. But today, INR – and the State Department we serve – is at risk of losing access to one of the most important streams of intelligence on which we rely if Section 702 of the Foreign Intelligence Surveillance Act (FISA) is not renewed. This law will expire on December 31st unless Congress takes action to reauthorize it.

My colleagues in the IC and at the Department of Justice (DOJ) have already made a strong case for reauthorizing Section 702 to protect the United States from foreign threats – from terrorists and cyberattacks to espionage and the proliferation of weapons of mass destruction. I share these sentiments. 702 has been vital to countering these and other national security threats. But I worry the public discussion on 702 thus far has not fully addressed how 702 enables other instruments of US power – including diplomacy. Simply put: the 702 program doesn’t just help defend and protect U.S. interests. It is essential to advancing and promoting U.S. interests around the world.

So today, I want to discuss the value of Section 702 to INR and the State Department, provide examples of how 702 information has enabled U.S. diplomacy, and describe safeguards we have in place to protect privacy and civil liberties.

But before describing how Section 702 supports U.S. diplomacy, it’s important to clarify what 702 does and does not permit.

First, Section 702 is focused solely on foreign targets. 702 allows designated elements of the IC to compel US electronic communications service providers to share the data of non-U.S. persons located outside of the United States who have defined types of foreign intelligence information.

Second, 702 does not permit the targeting of U.S. persons or anyone located in the United States. It also prohibits so-called “reverse targeting” — meaning the IC can’t target the communications of a non-U.S. person abroad if the ultimate purpose is to collect on a U.S. person or someone located in the United States.

Now, while 702 explicitly prohibits targeting U.S. persons, like many other forms of intelligence collection, the IC does at times obtain the communications of U.S. persons incidentally while collecting against a foreign target. In INR, when a U.S. person’s data appears in an intelligence report we receive—and this can happen when foreign targets communicate with or about Americans—that data is “masked” in the report to protect the individual’s privacy. As a consumer of intelligence reporting, INR does not have access to the raw, underlying intelligence. If an INR officer needs to request the identity of the U.S. person, there’s a compliance process we follow to demonstrate and document a valid “need to know.” And the overall numbers of unmasked U.S. persons are provided to the public annually as part of DNI’s Annual Statistical Transparency Report.

Third, 702 is not a bulk collection program. It’s a targeted, tailored collection program focused on individual foreign targets located outside the United States who are communicating about specific intelligence topics that the Foreign Intelligence Surveillance Court has reviewed and approved. So I hope this provides some context for the narrow scope of the 702 program.

Throughout my career in national security, whether at the CIA, the Pentagon, or the White House, I’ve had a firsthand perspective on how Section 702 supports the intelligence community, the warfighter, and policymakers. But I admit, until joining the State Department 20 months ago, I was unaware of the critical role that 702 plays in supporting U.S. foreign policy. Let me share a few observations that underscore the importance of 702 for the State Department.

In INR, it is hard to overstate the centrality of 702 collection to providing the Secretary of State and U.S. diplomats with objective, timely analysis. From assessments on Russia, China, Iran and North Korea to foreign influence and cyber threats, 702 reporting provides our analysts with unique insights that, when combined with other information, make our policymakers better informed on the issues so they can make better decisions. In 2022 alone, a large percentage of INR’s finished analytic products included 702 reporting. Oftentimes, 702 data was the most valuable source underpinning these assessments. As one manager put it, “INR would not be able to fulfill its mandate to use intelligence to empower diplomacy without 702-derived reporting.”

Another way that INR and the State Department have benefitted from 702 is by sharing downgraded or declassified intelligence with allies and partners—a critical tool to strengthen U.S. leverage at the negotiating table, expose disinformation, or galvanize partners and allies. U.S. diplomats abroad routinely rely on 702 data for formal demarches, to pass threat information, or to engage counterparts on sensitive matters. Last year, many of the requests by U.S. diplomats to downgrade or declassify intelligence for sharing with foreign partners was sourced to 702 information.

Finally, Section 702 has helped the State Department monitor and evaluate Russian atrocities in Ukraine and take actions to hold them accountable. As the Deputy Attorney General testified last month, Section 702 has helped uncover gruesome atrocities committed by Russia in Ukraine – including the murder of non-combatants, the forced relocation of children from Russian-occupied Ukraine to the Russian Federation, as well as the detention of refugees fleeing violence by Russian personnel. This and other information have helped the U.S. government to galvanize accountability efforts related to Ukraine by confidently and accurately speaking to the international community about Russia’s atrocities.

So whether it’s providing U.S. diplomats with strategic assessments, downgrading or declassifying intelligence to share with foreign partners, or taking action against those who commit atrocities, 702 is invaluable to the Department’s diplomatic efforts.

While I hope this general overview is useful, those of us in national security also understand that to preserve this tool, the government must do a better job demonstrating its value to the Congress and the American people. That’s why we’ve worked closely with our IC counterparts in recent weeks to declassify new, real-world examples that I’m pleased to share with you today.
        - Let me start with an example regarding treaty monitoring and compliance. Without 702 collection, the State Department’s ability to hold nations accountable for adhering to international obligations regarding weapons of mass destruction would be significantly degraded. For example, 702 information was a critical input and provided some of the most meaningful reporting in the classified portion of the 2023 Annual Report on Compliance with the Chemical Weapons Convention.
        - When it comes to defending human rights, which President Biden has called a “fundamental challenge of our time,” Section 702 has helped the State Department shine a light on those who seek to silence dissent and opposition. In 2021, information derived from Section 702 enabled U.S. diplomats to demarche a Middle Eastern country over its efforts to monitor and track dissidents abroad, as well as dissidents here in the United States.
        - In another example, Section 702 data helped expose efforts by foreign powers, including the PRC, to coerce nations to oppose international responses to human rights violations. This reporting enabled U.S. diplomats to assist countries in shielding themselves from coercion and influence.
        - And finally, 702 reporting allowed the State Department and other agencies to notify partners and allies about illicit North Korean activities. In 2022, section 702 data was vital in warning the international community, the private sector, and the public about efforts by the DPRK to deploy information technology workers to commit fraud against a global industry, including against US businesses, to generate revenue for its nuclear program.

In sum, Section 702 has been a key enabler for U.S. diplomacy.

But here’s the thing: America’s diplomats aren’t going to stop engaging with the world if they lose access to a key stream of intelligence like 702. They’ll continue advocating for U.S. interests, serving American citizens abroad, and working to build a more free, prosperous and secure world. But make no mistake: a future without 702, or a much-diminished 702 program, will have significant costs for U.S. diplomacy.

Having said that, we appreciate the power and the potential for abuse of 702 authorities without proper safeguards and controls. Critics are right to question whether the program has the appropriate oversight and privacy measures in place given mistakes in the past. Effective oversight by Congress and questions from civil liberties advocates have helped highlight the need for many of the recent reforms undertaken by DOJ and the IC.

As I said at the outset, the State Department is only a consumer of intelligence derived from 702 collection, so my colleagues at DOJ and the Office of the Director of National Intelligence are best placed to address potential reforms to the program.

However, I do want to describe the State Department’s own internal safeguards and compliance measures. And here, it’s worth expanding on INR’s role as a “consumer” of 702 information, since many IC agencies in fact occupy a similar role.

As an agency without any operational authorities tied to the 702 program, INR does not have access to unevaluated, raw, or unminimized 702 data. Period. Moreover, since we can’t access the data, we can’t perform targeted queries on it.  INR and most IC agencies are not just prohibited from accessing raw 702-derived data—the actual email exchanges, call transcripts, chat records, etc.—we don’t have the capabilities to access it even if we wanted to. In fact, only authorized and trained personnel at a small number of agencies—the National Security Agency (NSA), CIA, FBI and National Counterterrorism Center—have access to subsets of 702 data.

Instead, at INR, our officers only receive access to disseminated, serialized reporting that contains 702 data.  What does disseminated reporting refer to? It means the raw data has been reviewed for valid foreign intelligence information by authorized personnel at the collection agency, sanitized of U.S. person information, and formally published in a report that’s made available to the broader IC. Once the report is published, for instance by the NSA, INR analysts can use it to inform an assessment or support policymakers.

Like other agencies, INR nevertheless has a robust internal compliance and oversight mechanism for intelligence programs like 702.

First, we have Department of State Guidelines for Intelligence Activities, approved by the Attorney General, which, among other things, govern how INR retains and uses any information concerning U.S. persons.

Second, we have established internal processes and procedures for INR analysts to submit requests to “unmask” the identity of a U.S. person in a report derived from 702 data if the analyst can demonstrate a valid need to know. For example, if a “named U.S. person State Department employee” in a 702 report is the target of a physical threat, an INR analyst may request to “unmask” the person’s identity so the Bureau of Diplomatic Security can warn them and take appropriate safety measures. All such requests are formally documented, reviewed, and approved by senior officials.

Third, we have a Civil Liberties, Privacy and Transparency Officer who helps oversee and advise on internal compliance with these activities.

Finally, like other agencies in the IC, INR is working to implement the enhanced privacy and civil liberties safeguards for U.S. signals intelligence activities that President Biden directed last year as part of Executive Order 14086 to Implement the European Union-U.S. Data Privacy Framework.

The reality is that, taken together, the compliance and reporting requirements for the 702 program and the improved safeguards for signals intelligence activities in the Executive Order represent an oversight and compliance regime that is unmatched in the world in terms of the protections and transparency it affords U.S. and non-U.S. citizens alike. At a time when digital authoritarianism is on the rise, the framework and safeguards established by the United States can serve as a model for how to conduct legitimate intelligence activities in a manner consistent with privacy, civil liberties and transparency imperatives.

Looking ahead, I’m confident that, working with Congress, we will find a way to preserve these vital authorities while addressing privacy and oversight concerns. As the Director of National Intelligence and the Attorney General have said, the administration is “committed to engaging with Congress on potential improvements to the authority that fully preserve it efficacy.”

For INR and the State Department, an indispensable part of that efficacy is the advantage that 702 information provides for American diplomacy. From advancing human rights and climate security to countering authoritarianism, American diplomats are on the frontlines of every major threat and opportunity we face in the world today. But to sustain their efforts, to give our diplomats information advantage, they will continue to need every tool at our disposal—especially Section 702. Thank you.

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Bureau of Intelligence and ResearchChinaCyber SecurityDefenseEuropean UnionIranNorth KoreaRefugeesRussiaUkraine

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