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White House advisory board urges changes to surveillance tool

Government is pushing for Congress to reauthorize Section 702 before it expires at the end of the year

FBI Director Christopher Wray arrives to testify at an oversight hearing before the House Judiciary Committee hearing on July 12.
FBI Director Christopher Wray arrives to testify at an oversight hearing before the House Judiciary Committee hearing on July 12. (Tom Williams/CQ Roll Call)

The Biden administration released an advisory board’s recommended safeguards for a warrantless surveillance program Monday, as the government pushes this year to convince skeptical members of Congress to reauthorize what it considers a key national security tool.

The report from the President’s Intelligence Advisory Board found complacency, a lack of proper procedures and a high volume of activity under Section 702 of the Foreign Intelligence Surveillance Act led to the FBI’s “inappropriate use” of the authority to search for information about people in the United States.

But the board report also defended the program for its ability to uncover threats and said jettisoning the program over “compliance errors” would be a grave mistake. Section 702 expires at the end of the year.

“The cost of failure is real. If Congress fails to reauthorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time,” the board report states.

Section 702 allows the U.S. government to collect the digital communications of foreigners who are located outside the country. But some lawmakers from both parties have lambasted the breadth of the surveillance power and zeroed in on how U.S. authorities are allowed to dig through information on Americans.

The program has run into sharp criticism from House Republicans, many of whom have criticized the agency for what they perceive as political bias within the agency.

The advisory board, in the report released Monday, said they found no proof that the FBI willfully misused the surveillance power for political purposes.

The board floated a list of recommendations, including putting in place a standard that incorporates a “two-person integrity check” when searching for information about a U.S. person.

The board also recommended requiring agencies to update their software to require “a robust standard for written justifications of U.S. person queries.”

The board did not recommend one change that’s been floated in Congress: getting a warrant before searching data from Americans. The panel said it would be impractical to get a warrant before every U.S. person query because there would be too many requests, “preventing intelligence agencies from detecting threats in a timely manner.”

“Section 702 queries do not constitute searches, and no court has ever held that a warrant is required for a U.S. person query of information collected under Section 702,” the report states.

Biden administration officials said they will review the board’s recommendations. U.S. authorities have said the law has disrupted planned terrorist attacks and identified foreign ransomware attacks on U.S. infrastructure.

Yet, the Biden administration’s push to reauthorize the law has faced headwinds with revelations in recent years about Section 702 and the broader Foreign Intelligence Surveillance Act.

A court opinion released earlier this month said the FBI improperly searched foreign surveillance information last year using the last names of a U.S. senator and a state-level politician. And a court order unveiled earlier this year showed the Foreign Intelligence Surveillance Court has found “persistent and widespread” compliance problems with the FBI’s searches under Section 702.

FBI Director Christopher Wray has told lawmakers that the agency has had “failures” complying with the Foreign Intelligence Surveillance Act. But he’s said changes have been implemented.

The FBI, in a statement, said the report from the advisory board “recognizes that the reforms put in place by the FBI have yielded substantial compliance improvements.”

“We agree that Section 702 should be reauthorized in a manner that does not diminish its effectiveness, as well as reassures the public of its importance and our ability to adhere rigorously to all relevant rules,” the agency said.