The Biden administration, facing the prospect that its spy agencies could lose what they say is one of their most potent intelligence-gathering tools, is mounting a full-court press to convince an increasingly skeptical Congress that allowing the surveillance power to lapse will endanger the nation’s security.
The law is scheduled to expire at the end of the year. The administration is so worried about the bill’s future that it has begun the push to lobby for reauthorization 10 months before the law sunsets.
“Its value cannot be overstated,” Assistant Attorney General Matthew Olsen said in remarks at the Brookings Institution Tuesday. “Without 702, we will lose indispensable intelligence for our decision-makers and warfighters, as well as those of our allies. And we have no fallback authority that could come close to making up for that loss.”
Olsen’s speech came as Attorney General Merrick Garland and Director of National Intelligence Avril Haines sent a letter to Congress urging prompt reauthorization. All three officials hammered the theme that the law has provided crucial intelligence on a variety of threats, including Russia’s invasion of Ukraine, North Korea’s nuclear program, Iran’s sanction evasions and the Chinese government’s effort to spy on the United States and steal its technology.
Together, they represent an “opening gambit” in the mission to educate Congress and the public about the law’s importance, said a senior intelligence official on a call Tuesday with reporters. The official spoke on the condition of anonymity under ground rules set by the Biden administration.
Section 702, passed in 2008 when the country still saw foreign terrorism as the top security threat, has been reauthorized by Congress twice since then, but the margins have narrowed. In recent years, civil libertarians on the left have been joined by traditional law-and-order Republicans on the right, voicing concerns that it intrudes on Americans’ privacy.
Section 702 allows the FBI and the National Security Agency to gather emails, text messages and other electronic data from U.S. tech firms like Google, Microsoft, Apple and Meta without a traditional warrant based on probable cause when the target is a foreigner overseas and it’s for foreign intelligence purposes, such as counterterrorism, nuclear proliferation, espionage and cyberattacks.
The material gathered goes into a database and that surveillance is subject to oversight by a federal court, Congress, the Justice Department and the Office of the Director of National Intelligence. The FBI is granted access to only a portion of that database.
But the left and right have criticized the law for different reasons. Privacy advocates are largely focused on a subset of 702 collection — the FBI’s searches of a fraction of the 702 database for leads in counterespionage, cyber or counterterrorism probes. The FBI does not need a warrant in most cases to scour the database of foreign targets for an email address, but because the target may have been in communication with a U.S. citizen or resident and that email may be in the database, the lack of a warrant requirement has long concerned privacy advocates.
Sen. Ron Wyden (D-Ore.) years ago dubbed that the "backdoor search loophole.”
Rep. Pramila Jayapal (D-Wash.), chairwoman of the Congressional Progressive Caucus, this month tweeted “any FISA reauthorization must include meaningful reforms to protect Fourth Amendment rights.”
The "only way to fully protect Americans’ Fourth Amendment rights and prevent abuses is to require the government to obtain a probable-cause court order before performing U.S. queries,” the Brennan Center for Justice’s Elizabeth Goitein argued in an article for the website Just Security.
But Glenn Gerstell, a former NSA general counsel, counters that such a requirement would be unreasonable. “We’re talking only about the subset of national security targets the FBI is worried about, mainly in counterintelligence and counterterrorism cases — and only if they think there’s some foreign connection. They can’t just search that database for some routine domestic crime,” he said.
Conservative critics have taken their deep distrust of the FBI in the wake of a surveillance scandal and other FBI-related controversies and projected it onto Section 702. A major source of ire was a flawed surveillance warrant the FBI obtained in 2016 to wiretap Carter Page, a former aide to Donald Trump’s presidential campaign. The Justice Department inspector general in a scathing report detailed "at least 17 significant errors and omissions” in the warrant.
The Page court order was not obtained under Section 702, but rather a different section of FISA.
Nonetheless, Freedom Caucus members such as Rep. Jim Jordan (R-Ohio) have publicly signaled their opposition to reauthorizing Section 702. “We need to make changes to the FISA process," Jordon told Fox News in the fall. “I think we should not even reauthorize FISA, which is going to come up in the next Congress.”
The administration is not taking any chances. On Monday and Tuesday, officials reiterated that they are willing to work with Congress to strengthen privacy safeguards in a manner that preserves the tool’s efficacy. Olsen noted reforms have been made so that FBI personnel must record “specific, written justifications” before accessing 702 information resulting from a U.S. person query, and there are now preapproval requirements for certain types of sensitive U.S. person or large-scale queries.
“There has been a dramatic decrease in the total number of U.S. person queries since the FBI adopted these reforms in 2021, along with a significant reduction in the number of inadvertent queries of 702 data,” he said.
Officials also noted that reforms have been made in the traditional FISA process following the inspector general’s report. “We welcome the opportunity to talk through those remedial measures” with lawmakers and staff, said a senior Justice Department official.
The battle for reauthorization lies principally in the Republican-controlled House. Jordan is chairman of the Judiciary Committee, which will have first crack at the Section 702 bill in the House.
In previous rounds of Section 702 renewal, despite the objections, “there was always a core group in both houses that said we need Section 702,” Gerstell observed. “Now, it’s no longer clear that there is a majority in the House that is convinced of the value of the statute and therefore the government has a big education campaign on its hands.”