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Congress pits privacy against intelligence as it ponders surveillance renewal

FBI searched through collected data for information on U.S. persons nearly 5 million times over three years, board reports

"We know we have to get back to it," Sen. Richard J. Durbin, D-Ill., said about the FISA reauthorization.
"We know we have to get back to it," Sen. Richard J. Durbin, D-Ill., said about the FISA reauthorization. (Bill Clark/CQ Roll Call file photo)

Privacy hawks and intelligence-focused lawmakers are expected to battle this year over the reauthorization of a powerful but controversial spy authority, with members at odds over privacy protections and no clear sign where Congress will land.

Lawmakers face an April 19 deadline to reauthorize Section 702 of the Foreign Intelligence Surveillance Act before it expires. But they disagree on how far Congress should go in providing privacy protections on American information that’s swept up under the program — and seem to have put the issue on the back burner for now.

Congress failed to pass a longer-term reauthorization in the final days of last year’s legislative calendar, with House Republicans clashing over proposals from the Judiciary and Intelligence committees. Instead, faced with the prospect of the authority expiring at the end of last year, lawmakers opted to use the fiscal 2024 defense policy bill to pass a short-term reauthorization through April 19, giving themselves more time to work on a longer-term reauthorization.

Section 702 allows the U.S. government to collect digital communications of foreigners located outside the country. But the program has been the subject of lawmaker concern because it also brings in the communications of Americans and allows the FBI to search through the information without a warrant. The agency can search through the data based on a single field, such as an email address or name.

The debate over Section 702 has cooled since lawmakers returned in the new year and the short-term measure in place, even with members still at odds over what changes are needed.

A bipartisan bill backed by members of the Judiciary Committee would put in place a robust warrant requirement regarding information on Americans, with certain exceptions. The Biden administration has opposed the idea of a warrant requirement.

Another bipartisan bill backed by the Intelligence Committee would prohibit, with exceptions, the FBI from conducting searches of Section 702 for information solely designed to find evidence of criminal activity.

Senate Judiciary Chair Richard J. Durbin, D-Ill., said he does not think there are ongoing negotiations on Section 702 and that lawmakers are “preoccupied with other issues.”

“But we know we have to get back to it,” Durbin said.

Rep. Jerrold Nadler, the top Democrat on House Judiciary, said attention in Congress is elsewhere as of right now.

“Everybody’s focused on the budget, immigration, Ukraine. Our plate is full at the moment,” Nadler said. Rep. Andy Biggs, R-Ariz., who introduced the House Judiciary bill, said he is trying to get Speaker Mike Johnson, R-La., to put the Judiciary panel bill on the floor.

Rep. Pramila Jayapal, D-Wash., another supporter of the House Judiciary bill, said she has not heard about any negotiations regarding Section 702 as of late.

“I’ve spoken to Andy Biggs quite a bit about this. And we’re trying to figure out how to ramp up the momentum again and the pressure,” Jayapal said.

Jayapal noted that the Judiciary bill passed overwhelmingly in committee. “We think that should be brought up to the floor. But obviously with the extension, we’re worried that the momentum that we had built has kind of slipped,” she said.

FBI ‘misuses’

Justice Department and intelligence officials faced a skeptical Congress after revelations detailed FBI misuses of Section 702 and the broader Foreign Intelligence Surveillance Act. In one revelation, a court opinion said the FBI improperly searched foreign surveillance information using the last names of a U.S. senator and a state-level politician.

Concerned lawmakers have also zeroed in on the apparent scope of the FBI’s use of the program. The Privacy and Civil Liberties Oversight Board, which is an independent U.S. government board, reported that the FBI alone searched Section 702 databases for information on U.S. persons nearly 5 million times over three years. A board report said Section 702 “remains highly valuable to protect national security, and that it creates serious privacy and civil liberties risks.”

Intelligence-focused lawmakers have acknowledged the misuse of Section 702 and said changes are needed, but the lawmakers have also defended FISA and described the authority as a critical tool in protecting national security.

“We are currently at the highest threat to national security to the United States in a decade. FISA is our best weapon to combat the threats we face today and in the future,” said Intelligence Committee Chairman Michael R. Turner, R-Ohio, at a December meeting. “The American people are looking for us to keep them safe.”

Turner commented that the FBI has abused Section 702 and said the legislation from his committee includes “targeted reforms.” Biden administration officials have underscored the effectiveness of the surveillance authority in making their pitch to Congress, reporting that the program has identified foreign ransomware attacks on U.S. infrastructure and disrupted planned terrorist attacks.

A watered-down surveillance program could leave the agency paralyzed to respond to threats, FBI Director Christopher Wray warned lawmakers in December.

Wray also invoked the Sept. 11 terrorist attacks as he delivered a full-throated defense of the program.

“What could anybody possibly say to victims’ families if there was another attack that we could have prevented if we hadn’t given away the ability to effectively use a tool,” Wray told lawmakers on the Senate Judiciary Committee. 

As efforts to change the FISA process have stalled, so too have court challenges to the existing law. Earlier this month, the Supreme Court declined to hear an appeal from X, the social media company formerly known as Twitter, that sought to disclose in aggregate requests the company received under both the FISA process and a separate National Security Letter process.

The lawsuit, which has gone on for nearly a decade, came after the FBI blocked the social media site’s effort to publish a “Transparency Report” in 2014 containing information about the national security requests it had received. A framework similar to the one the FBI used to block the publication was adopted in the 2015 reauthorization of the FISA law and allows some disclosures of information about national security requests companies received.

The social media site challenged the FBI decision, arguing it violated the company’s free speech rights. But the district court and eventually U.S. Court of Appeals for the 9th Circuit both backed the FBI — decisions the Supreme Court left in place earlier this month.

Several free speech groups weighed in on the case and criticized the Supreme Court’s decision not to take the dispute. Patrick Toomey, director of the ACLU’s National Security Project, criticized the “sweeping gag orders” upheld by the 9th Circuit decision.

“The government often turns to companies to assist with surveillance, forcing platforms like X to turn over sensitive information about their users while gagging them from providing important transparency to the public,” Toomey said.

The First Amendment Clinic at Arizona State University filed a brief to urge the justices to take the case, arguing that the 9th Circuit ruling ignored important free speech interests in denying Twitter’s effort to publish its transparency report.

Gregg Leslie, a law professor at ASU and director of the clinic, said that while prior reauthorization efforts have emphasized some transparency, such as the 2015 one that included the current limited disclosure provisions, he has not seen as much momentum for transparency this time around.

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