Section 702 renewal has support in Congress, but intelligence officials are leery of warrant measure

FBI Director Christopher Wray discussed the importance of 702 authorities at a December 2023 hearing of the Senate Judiciary Committee.

FBI Director Christopher Wray discussed the importance of 702 authorities at a December 2023 hearing of the Senate Judiciary Committee. Kevin Dietsch/Getty Images

The disputed surveillance authority expires April 19, and the intelligence community is sending a full-court press to keep it from garnering significant privacy reforms.

Lawmakers will soon determine the fate of a contested foreign surveillance law that’s set to expire in under two weeks, and the intelligence community is imploring Congress to keep the statute as close to the status quo as possible, including rejecting measures that spy agencies say would impair the tool’s effectiveness but privacy advocates argue would make it less ripe for domestic surveillance abuses.

The House Rules Committee on Tuesday will consider the Reforming Intelligence and Securing America Act — followed by a classified all-members briefing held by intelligence officials on Wednesday and a likely floor vote Thursday — as Capitol Hill debates the fate of Section 702 of the Foreign Intelligence Surveillance Act which expires on April 19 unless reauthorized.

The measure gives the FBI, NSA and others with legal authority to warrantlessly sweep up communications of non-U.S. foreigners living abroad and use that vast trove of stored data in national security and terrorism investigations. But the statute permits two-sided collection, even for communications that are gathered when an American is speaking with a foreign target, which civil liberties groups say violates Fourth Amendment rights and enables the tool to be abused for surveillance at home.

Senior Biden administration officials say that members of Congress are no longer contesting the value of Section 702, but that its ultimate fate will be decided by reform measures potentially added to the RISAA measure this week.

Chief among those proposals is a requirement for intelligence operatives to seek a warrant before querying Americans’ phone calls, emails and text messages swept up in the 702 gathering process. The warrant requirement is strongly supported by privacy and civil rights organizations on both sides of the political aisle, but spy chiefs have publicly said that doing so would gut the tool’s effectiveness because it slows down ongoing terrorism investigations.

“A day does not go by where … the intelligence that we are seeing [and] that we are using to understand, identify and disrupt threats does not come from 702,” said a senior administration official who briefed reporters on background Friday. The official said that a warrant requirement would be “operationally devastating.”

RISAA would prohibit queries for crimes not related to national security and codify a slew of reform steps already taken by the FBI to curtail misuse of the authority, but it does not include privacy advocates’ requested warrant requirement. Civil liberties representatives deem it a reform bill in only its name.

“It’s a compromise, alright. It continues to compromise the Fourth Amendment rights of every American by not mandating that the FBI or any other federal agency seeking to access the stored communications of Americans first get a warrant from a judge,” said Patrick Eddington, a former CIA analyst now serving as a senior homeland security and civil liberties fellow at the Cato Institute.

In September, the Privacy and Civil Liberties Oversight Board found that the U.S. provided “little justification” for the value of warrantless searches of Americans’ conversations under 702.

Various small-scale abuses of the tool have included an NSA analyst using it to search for the communications of two people they met on an online dating platform, as well as some 2,000 searches of the names and birthdays of individuals registered to compete in an athletic event, according to the PCLOB findings which involved scrutiny of classified information provided to the board.

Headline-making 702 infringements have galvanized much of the privacy world and privacy-centric lawmakers, including instances where it was used to surveil Black Lives Matter protesters and participants in the Jan. 6, 2021 attack on the U.S. Capitol.

“The House must take the opportunity to vote next week on fundamental reforms that would put an end to the substantial harm that this program has allowed once and for all,” said Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union.

Details on the use of 702 data is mostly classified, though the intelligence community has said publicly that President Joe Biden’s daily briefings are heavily derived from 702 sweeps. Officials have also said that it’s been crucial in going after hackers linked to adversaries like China and Russia.

The spying ordinance was born out of Bush-era surveillance measures enacted in 2008 which gave intelligence agencies a legal framework to fortify and invigorate their spying capabilities in the aftermath of the September 11 attacks. It laid the groundwork for the mass surveillance revelations that came from ex-NSA contractor Edward Snowden in 2013.

The Biden administration filed an extension request for the tool in the Foreign Intelligence Surveillance Court last month. The court, which has historically come under harsh criticism for its esotericism and the limited number of intelligence-gathering requests it rejects, signed off on the request, allowing 702-backed investigations to continue through April of next year, another senior administration official confirmed to reporters.

How the remaining weeks play out is not entirely clear. If reform measures are pushed into RISAA and approved in both chambers of Congress, there’s a chance the White House may invoke its veto power and send it back without being signed. If discussions blow up like they have in previous talks, lawmakers may have to consider another short-term extension.

If a suitable 702 bill is crafted, it will go to the Senate, where it will be considered before President Biden signs it. On Friday, Senate Majority Leader Chuck Schumer, D-NY, said the high chamber must be ready to act on a bipartisan basis to reauthorize the authority.

“We need to focus on getting this thing sustainably reauthorized,” another senior administration official said. “Whether the intelligence community and law enforcement can rely on an absolutely essential authority should not be up for grabs [and] should not be called into question every three months. That is an irresponsible way for Congress to legislate,” they added.