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Senators want privacy safeguards in renewing surveillance tool

Durbin said he would only support reauthorization of Section 702 if there are 'significant reforms'

NSA surveillance protesters march in 2013 from Union Station to the U.S. Capitol to voice opposition to government's surveillance of online activity and phone calls.
NSA surveillance protesters march in 2013 from Union Station to the U.S. Capitol to voice opposition to government's surveillance of online activity and phone calls. (Bill Clark/CQ Roll Call)

Members of the Senate Judiciary Committee told intelligence officials Tuesday that a contentious surveillance tool that expires at the end of the year needs more privacy safeguards for Americans.

The hearing Tuesday aired part of the ongoing debate over national security interests and the rights of Americans as the Justice Department pushes to renew Section 702 of the Foreign Intelligence Surveillance Act.

That section allows the U.S. government to collect the digital communications of foreigners who are located outside the United States, but the Foreign Intelligence Surveillance Court found “persistent and widespread” compliance problems with the FBI’s searches under Section 702, according to an order that was unveiled weeks ago.

Chair Richard J. Durbin D-Ill., said the surveillance program does not do enough to protect privacy and civil liberties. He mentioned that in the past he supported an effort to require a warrant for any “backdoor” search of American communications.

“So at the outset of today’s hearing, let me say this: I will only support the reauthorization of Section 702 if there are significant, significant reforms,” the Illinois Democrat said. “And that means, first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”

Durbin said the changes must include safeguards to prevent future abuses and ensure effective oversight from Congress and the courts, and national security and constitutional rights can be protected at the same time.

While gathering intelligence on foreigners, the U.S. government also collects the private communications of Americans who communicate with those people who are abroad, Durbin said, but the government will not say how many American communications are collected under Section 702.

Sen. Lindsey Graham of South Carolina, the top Republican on the panel, said the provision has been used to identify bad actors. Plus, the threats to the nation are growing, he said.

“That’s the need for it. The downside is it has been abused, and there’s a warrant requirement to investigate an American citizen for potential wrongdoing,” Graham said. “And we don’t want this to be used to get around a warrant requirement.”

“Bottom line is, let’s reauthorize this program and build in some safeguards,” Graham said.

The Foreign Intelligence Surveillance Court order also included 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 FISA, the order said.

Matthew Olsen, the assistant attorney general for National Security at the Justice Department, told senators Tuesday that the authorization of Section 702 is perhaps the most consequential national security decision this Congress will make.

Olsen, who said he was part of the Justice Department team years ago that worked with Congress to pass Section 702, argued that the ability to use the surveillance authority has real world outcomes.

He said the FBI was able to disrupt assassination and kidnapping plots in part because investigators searched Section 702 data with “U.S. person identifiers,” allowing them to discover the extent of the situation.

“Unduly limiting the FBI’s ability to access lawfully collected information and imposing artificial barriers between foreign intelligence and criminal investigations will set us back decades. It will put our nation at grave risk,” Olsen said. “Section 702 has proven to be an irreplaceable authority.”

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