Former national security officials urge Congress to renew Section 702 before expiration

Around four dozen former national security officials urged Congress to renew a contentious spying power before it expires later this month, asking that lawmakers ensure the reauthorization process doesn’t get entangled with other legislative matters, according to a letter obtained by Nextgov/FCW.

Section 702 of the Foreign Intelligence Surveillance Act allows the FBI, NSA and other intelligence agencies to gather overseas foreigners’ communications without a warrant.

The authority is legally limited to non-U.S. persons abroad, but it can sweep in Americans’ texts, emails and phone calls when they communicate with overseas targets, raising Fourth Amendment concerns from privacy advocates. It lapses after April 19 unless lawmakers vote to renew it.

“We cannot afford to let our Intelligence Community lose this tool that helps keep our nation safe, even for a day,” said the letter, which was sent earlier this week. 

It was signed by top intelligence and law enforcement veterans, including former NSA deputy director George Barnes, former FBI director Chris Wray, former director of national intelligence James Clapper and former CIA director John Brennan.

The letter pushes back on efforts made by some members of Congress to concurrently address the intelligence community’s purchases of commercial data without a warrant as part of the Section 702 renewal.

“Some have sought to use this reauthorization as an occasion to address concerns about government acquisition of Americans’ information from commercial data brokers,” the letter says. “But as you know, Section 702 is a targeted statute governing electronic surveillance of non-U.S. persons abroad. The matter of data broker purchases has nothing to do with Section 702, is fundamentally distinct from FISA, and should not be conflated with or delay the urgent need for the Act’s renewal.”

The letter’s signatories also reference a staff report issued last week by the Privacy and Civil Liberties Oversight Board that largely backed the use of Section 702 since its last renewal in 2024. That report has received major pushback from civil liberties groups, who have questioned its conclusions because it was produced under a sub-quorum policy with only one Republican member. 

Privacy advocates argue that a warrant measure should be required for searches of U.S. person data swept up under 702. The intelligence community has traditionally argued against that measure because they say it would slow down timely investigations and prevent analysts from acting on hunches as they track national security threats.

Efforts to require warrants for 702 searches involving Americans’ communications came close to success during the 2024 reauthorization debate, when a House amendment failed after a 212–212 tie vote.

Some progressive members of Congress have sought to craft a softer version of a warrant measure that would grant some exceptions for certain U.S. person searches, according to two congressional aides with knowledge of the matter. One example of this could be an urgent case where intelligence analysts want to query an IP address to locate a U.S. organization and notify them that they were targeted by hackers, said one of the aides. 

Both requested anonymity to speak candidly about closed-door legislative discussions concerning the surveillance power.

But time is limited. Congress is in recess this week, limiting lawmakers’ available calendar time before the authority’s expiration. April 19 falls on a Sunday, opening the possibility of lawmakers working on the weekend to reach a deal.

Many in Congress are still in a “wait-and-see” mode, despite Capitol Hill running up close to the renewal deadline. The whip count for lawmakers who would vote for or against cleanly renewing the spying power is not entirely clear, according to both the congressional aides.

The Trump administration is seeking a clean 18-month extension of the law and has sent top intelligence officials to Capitol Hill for meetings to discuss renewal with lawmakers and their staff. Several lawmakers from both sides of the political aisle, including Trump supporters, have historically backed warrant reforms for the law.

Section 702 allows the intelligence community to compel U.S. tech, telecom and information service providers to supply access to targets’ communications, in part because much of the world’s internet traffic transits backbone infrastructure based in the United States.

The statute was enacted in 2008, codifying parts of the once-secret Stellarwind surveillance program created under the Bush administration after the Sept. 11, 2001, terrorist attacks. In 2013, former NSA contractor Edward Snowden disclosed documents detailing how the authority was used, fueling a global debate over privacy and mass surveillance.