ICYMI: White House ONDCP Director Op-Ed on Reauthorization of Section 702 of the Foreign Intelligence Surveillance Act

“As we lose one American to drug overdose and poisoning every five minutes around the clock — more than 110,000 people each year — there are those who would let Section 702 expire, or insist on changes that would substantially weaken it. We cannot allow that to happen.”

Washington, D.C. – Today, White House Office of National Drug Control Policy (ONDCP) Director Dr. Rahul Gupta published an op-ed in The Washington Post calling on Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), a critical intelligence tool used to protect the nation and the American people every day from global threats.

The Washington Post: This FISA provision goes beyond terrorism. It’s vital to beating the opioid crisis.

By Dr. Rahul Gupta

The U.S. government’s bedrock authority for staying ahead of international threats is about to expire. As the White House director of national drug control policy, I urge Congress to renew it — and fast.

Why, you might ask, is the first physician to hold my position advocating for this tool? Here’s why.

Since 2008, Section 702 of the Foreign Intelligence Surveillance Act (FISA) has permitted our government to engage in tailored surveillance of foreigners abroad who use U.S. communications technologies. It was passed by Congress as a way to enhance our post-9/11 antiterrorism capabilities, but it has also proved essential in other areas, including in addressing the scourge of foreign drug-trafficking. It’s due to run out on Dec. 31, a prospect that should concern all who care about addressing our nation’s opioid crisis.

In every place I have worked to reverse the drug epidemic — as a physician in private practice and as a local, state and now federal official — my colleagues and I have realized that we could save lives only when treatment was more accessible than illegal drugs. But, as I have seen time and time again, efforts to keep illicit fentanyl out of our communities work only if they are undergirded by timely and accurate information. We need intelligence to help us disrupt and dismantle the illicit fentanyl supply chain and give our public health efforts time to take root.

Clear, actionable intelligence is critical as the illegal drug trade undergoes a radical transformation, expanding from plant-based drugs to synthetic drugs involving a globalized network of precursor chemical and equipment providers. This web ensnares licit, unwitting actors — such as shipping companies — and uses only minuscule amounts of precursor chemicals to produce maximally lethal substances such as fentanyl.

Critical intelligence obtained under Section 702 has illuminated global supply chains, including networks that stretch from China to Mexico, in producing drugs ultimately pushed into the United States. Section 702 has informed the U.S. government’s understanding of the origin of a chemical used to synthesize illicit fentanyl in Mexico, provided insight into the quantities and potency of that and other illicit drugs, and exposed smuggling techniques. Section 702 intelligence also has linked at least one foreign government official to the drug trade.

Further, intelligence obtained through Section 702 has supported interdictions by our partners, such as a raid leading to the seizure of fentanyl-producing machinery that would have produced millions of fentanyl pills per hour.

As we lose one American to drug overdose and poisoning every five minutes around the clock — more than 110,000 people each year — there are those who would let Section 702 expire, or insist on changes that would substantially weaken it. We cannot allow that to happen.

Some members of Congress and others have raised valid concerns about Section 702 and privacy, chiefly queries of 702 collection that sometimes reveal information about what are termed under FISA as “U.S. persons” — a category that includes U.S. citizens and permanent residents or groups consisting of the same.

Though Section 702 bars intentionally targeting U.S. persons anywhere in the world, or anyone — U.S. person or not — located in the United States, lawful overseas 702 targets nevertheless might communicate with or about U.S. persons. These conversations might contain highly valuable and time-sensitive information. Which is why, under narrow circumstances and robust oversight, it might become prudent for the government to quickly use an identifier associated with a U.S. person, such as a phone number with a 202 area code, for example, to look through lawfully obtained Section 702 information and follow up. That process is known as running a “U.S. person query” of the 702 database.

The proposal that the U.S. government obtain a warrant before conducting a U.S. person query to pursue these leads gives me serious pause. It would block many queries and greatly delay many others. That could mean missing the opportunity to make a seizure of potentially deadly chemicals or to interdict a foreign smuggler moving drugs toward our border.

Recently, in response to Congress’s concerns and to protect the privacy of Americans, the FBI has implemented effective query and accountability reforms to Section 702, which the administration would support making permanent through law.

Keeping Americans safe is not a red-state or blue-state issue, but an American issue. That is why President Biden made beating the opioid crisis a key part of his Unity Agenda for the nation. This is a problem we must all come together to fix, drawing on Congress’s long record of bipartisan action on the fentanyl issue. The next step in that record must be reauthorizing Section 702.

###