19 April 2017

Ben Betner, third-year UT Law student and U.S. Army veteran, is paired with Professor Steve Vladeck as part of the Strauss Center's Brumley Graduate Fellows program. Under Professor Vladeck's guidance, Ben is writing a law review article on Section 702 of the Foreign Intelligence Surveillance Act, which expires at the end of 2017. He goes into detail for us:

Strauss Center: Could you please explain what you're researching as a Brumley Fellow?

Ben: I'm specifically looking at whether the current Section 702 “minimization procedures”—which are a set of controls on data to balance privacy and national security interests—are procedurally and substantively adequate to protect the privacy interests of U.S. persons.

Section 702 is one of the Intelligence Community’s primary tools in collecting foreign intelligence, and it has been successful in detecting threats to our national security. However, it operates in a way that also allows it to “incidentally” or “inadvertently” collect information on U.S. persons or individuals located within the United States that are communicating with a foreign surveillance target. The minimization procedures are designed to protect U.S. person’s data collected in this manner, but they are used after the acquisition of the data has already taken place. Because the government only obtains a single broad Section 702 certification each year, the selection of individual targets is not reviewed by the judiciary or legislative branches but made internally within the collecting agency. There are far more complexities within Section 702, but these basic issues alone raise further questions and concerns that I will be analyzing and discussing in my research.

SC: How is Prof. Vladeck helping with your research?

BB: I've never written a law review article before, so it was extremely helpful to have Prof. Vladeck guide me through the process. I find that the most difficult part of the research process is coming up with a topic that is timely, relevant, and workable. I knew I wanted to write an original article about electronic surveillance and Section 702, so his knowledge of the field helped me narrow down my topic to something that met this criteria. Throughout the research and writing process he has recommended sources and helped me streamline my outline to the relevant points. I know I will also be relying on his advice and expertise this next month as I finish up my project.

SC: What do you think the implications will be if Section 702 is reauthorized? Or perhaps it will be modified then reauthorized?

BB: I think there is a high likelihood that it will be reauthorized in its current form and not modified, for three reasons. First, it's such a powerful tool in the U.S. counterterrorism arsenal that the government has come to rely on it for protecting U.S. national security interests. Second, the current Administration and Congress seem to support a more aggressive foreign policy approach, so I find it unlikely that they will reduce their options for foreign intelligence collection.

The third reason is procedural in nature and one I am borrowing from Professor Steve Slick (Director of the Intelligence Studies Project): if Congress were to open up the statute for amendment, as opposed to reauthorizing it as is, both privacy and security advocates would likely want to amend the statute in significant ways. This would not only prolong the process but leave a degree of uncertainty in how the statute would emerge at the other end. However, even if it is reauthorized as is, there still may be changes in the internal policies and procedures of agencies that engage in Section 702 acquisition that may change the way the program operates.

SC: Please go into a bit of detail on your seven-year active duty career in the Army (Ed: including two deployments to Iraq and one to Afghanistan), especially as advisor to the Afghan National Army.

BB: I was trained in military intelligence and spent most of my time in Iraq providing intelligence support to tactical psychological operations units, whose goal is to persuade, change, and influence foreign target audiences. This is achieved through a careful analysis of the individual or group that is being targeted, followed by the design and development of a variety of print and media products that are disseminated in the local population.

As an advisor to the Afghan National Army Special Operations Command, I mentored the Afghan commissioned and non-commissioned officers, oversaw the training courses, and helped direct mission planning and execution. Our team included individuals from the Army, Navy, Marines, and Air Force, and taught me a lot about teamwork, leadership, and management. This was the most challenging and rewarding experience I had in the military because of the complexity of the mission and the amazing individuals I was able to work with and learn from.

SC: What’s in the future for you?

BB: I'll graduate from the law school in May, and after taking the bar exam this summer I'll start work at the law firm of Vinson & Elkins in Houston. I also have an interest in doing public service at some point in the future, so we will see where life takes me.

SC: Thank you for speaking with us Ben, and we wish you the best as you begin your law career!