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Senate panel to question agencies on key foreign surveillance tool

Judiciary Committee members have called for changes to Section 702 after revelations of improper FISA searches

Sen. Mike Lee talks with reporters in the U.S. Capitol this month.
Sen. Mike Lee talks with reporters in the U.S. Capitol this month. (Tom Williams/CQ Roll Call)

The government’s push to reauthorize a contentious surveillance tool this year heads to the Senate Judiciary Committee on Tuesday, as lawmakers of both parties use the expiration of the law this year as a leverage point to demand changes.

The hearing comes weeks after new revelations that the FBI misused a broader surveillance law in searches against people tied to 2020 racial justice protests and people suspected of being involved in the Jan. 6, 2021, attack on the Capitol.

The agency made more than 278,000 improper searches of information acquired under the Foreign Intelligence Surveillance Act, according to a court order released last month.

The Foreign Intelligence Surveillance Court also found “persistent and widespread” compliance problems with the FBI’s searching under a provision of the law known as Section 702. That section allows the U.S. government to collect the digital communications of foreigners who are located outside the United States.

Senate Judiciary Chair Richard J. Durbin, D-Ill., tweeted after the court order was unveiled that Section 702 exists to protect the nation from foreign threats but instead has “been abused again and again to spy on Americans.”

“This authority should not be renewed without significant reforms to safeguard Americans’ privacy and constitutional rights,” Durbin said.

Another member of the panel, Utah Republican Sen. Mike Lee, has been vocal about opposing a reauthorization without major changes.

“We need a ‘clean’ reauthorization of FISA 702 like a hole in the head,” Lee said in a tweet last month.

Appearing before the Senate Judiciary Committee on Tuesday will be representatives from the Justice Department, FBI, CIA, National Security Agency and Office of the Director of National Intelligence.

The Justice Department and intelligence officials are urging Congress to reauthorize the surveillance power, praising it as a cornerstone of national security. But the section has faced sharp criticism from civil liberty groups, which say the law sweeps up communications from U.S. citizens and allows authorities to run searches on that information.

Director of National Intelligence Avril Haines and Attorney General Merrick B. Garland have defended the program, saying the surveillance power has disrupted planned terrorist attacks and identified foreign ransomware attacks on U.S. infrastructure. It also contributed to the drone strike that killed Ayman al-Zawahiri last year, they reported.

But there’s been continued criticism over how the authority has been wielded. The Foreign Intelligence Surveillance Court said it’s encouraged by changes to the FBI’s search procedures and efforts to improve the agency’s querying practices.

But the court order still suggested action if there’s not significant progress on the compliance issues.

“If they are not substantially mitigated by these recent measures, it may become necessary to consider other responses, such as substantially limiting the number of FBI personnel with access to unminimized Section 702 information,” U.S. District Judge Rudolph Contreras wrote in the order.

The order also outlined other improper searches of information obtained under the Foreign Intelligence Surveillance Act.

The FBI conducted searches against people arrested in connection with 2020 racial justice protests, according to the order, and the Justice Department found that those queries “were not reasonably likely to retrieve foreign intelligence information or evidence of a crime.”

That was the same conclusion the department reached on various searches related to people suspected of being involved in the Jan. 6 breach of the Capitol.

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