DOJ to appeal intelligence court ruling over use of spying power

The Justice Department is appealing a ruling from the nation’s top surveillance court that took issue with how spy agencies use certain tools to analyze and process data collected under a controversial spying law being debated in Congress this week, according to a person familiar with the matter.

The Foreign Intelligence Surveillance Court renewed its certifications of the law — Section 702 of the Foreign Intelligence Surveillance Act, last month — letting it operate for another year even though the legislative authorization is set to expire on Monday without reapproval from Congress.

The statute lets spy agencies compel internet and telecom providers to supply contents of phone calls, emails and text messages of foreigners located abroad without a warrant, but, in doing so, agencies can also collect Americans’ communications data if they are in contact with a foreign target. 

The House hit an impasse this week on whether to include a warrant requirement for searches of U.S. person data collected under the program, a measure long sought by privacy advocates and lawmakers on both sides of the political aisle. The final version of the measure will also need Senate approval before reaching President Donald Trump’s desk. The administration is seeking an 18-month extension of the law without changes, though it’s not clear if the entire House will agree to that framework.

The Section 702 certification process involves the court annually reviewing and approving the procedures governing how agencies collect, handle and search data. A recertification lets the program continue under court-approved rules, but it does not extend the underlying law and can surface compliance gaps that require agencies to change certain procedures.

The FISC issues involved the filtering tools the FBI, NSA and other agencies use to sift through raw data collected under the program, said the person, who was granted anonymity to discuss a sensitive court matter.

The Justice Department did not immediately respond to a request for comment. The New York Times first reported the appeal.

Unclassified talking points on the certification previously obtained by Nextgov/FCW say the White House had until April 16 to appeal the order or correct the issues presented by the court. The court “determined that the proposed approach for the discreet technical capabilities at issue could present deficiencies,” according to the talking points. 

The judge’s concerns about the querying process suggest spy agencies may not be consistently applying safeguards meant to protect Americans’ data after being collected.

Various national intelligence elements of the Trump administration have dispatched officials and documents to Capitol Hill in an effort to lobby in favor of a clean renewal for 702.

Joint Chiefs Chairman Dan Caine addressed lawmakers in an April 8 letter, saying 702’s expiration would “significantly impair” national security capabilities if it isn’t extended, according to a copy obtained Tuesday by Nextgov/FCW. A classified enclosure described in the letter provided details on how the authority informs the Pentagon on foreign adversaries’ and U.S. combat operations planning, it added.

The CIA has also been advocating for a clean reauthorization, distributing a fact sheet to lawmakers’ offices that says Section 702 aided the spy agency in stopping a mass casualty event at a Taylor Swift concert in 2024.

The sheet added that the statute aided in a number of drug-related operations and also provided U.S. law enforcement “with information used to warn intended American victims of North Korean ransomware attacks.”

About 50 House Democrats signed an April 14 letter addressed to House and Senate leadership, urging them to adopt changes as part of the reauthorization of the statute, according to a copy viewed by Nextgov/FCW. Those proposed changes included closing a “loophole” that allows the intelligence community to purchase data from data brokers without a warrant.