By Bill Pan
The Biden administration on Tuesday called on Congress to renew a surveillance law set to expire at the end of the year, calling it a powerful tool in fending off foreign threats despite criticisms that it has become the FBI’s go-to justification for spying on Americans.
The law in question, known as Section 702 of the Foreign Intelligence Surveillance Act (FISA), authorizes U.S. government to electronically surveil foreigners “reasonably believe to be located outside the United States” without a warrant, even if they are in communication with Americans. This in effect allows intelligence agencies to collect millions of phone calls, emails, text messages, and video chats by compelling internet service providers like Verizon and AT&T to hand the data over.
According to the latest report by the Office of the Director of National Intelligence (ODNI), the FBI used its Section 702 powers to conduct nearly 3.4 million searches on U.S. citizens’ electronic communication data in the year of 2021, almost double from 1.3 million a year before.
FBI also used Section 702 to legitimize their surveillance on President Donald Trump’s 2016 campaign team, particularly conversations between national security adviser Michael Flynn and then-Russian ambassador to the U.S. Sergey Kislyak.
In a letter (pdf) to congressional leaders, Attorney General Merrick Garland and Director of National Intelligence Avril Haines said Section 702 has been used to identify and protect against national security threats to the United States and its allies, including conventional and cyber threats posed by China, Russia, Iran, and North Korea.
“It has also become clear that there is no way to replicate Section 702’s speed, reliability, specificity, and insight,” the Justice Department officials stated.
First enacted in 1978, FISA was amended in 2008 to include Section 702. Supporters of the provision garnered enough votes in Congress to extend its life in 2012 and 2018. In 2018, Congress approved yet another 6-year extension with 256 votes in the House and 65 in the Senate, although some Republicans took issue with FBI citing Section 702 to justify spying on Michael Flynn.
“The comprehensive system Congress designed to ensure this irreplaceable intelligence tool protects the privacy and civil liberties of U.S. persons has worked,” Tuesday’s letter stated. “When incidents of noncompliance have been identified, remedial steps have been taken to ensure the authority is being implemented consistent with its limited scope.”
Assistant Attorney General Matthew Olsen also argued in favor of Section 702’s renewal at a Brookings Institution event.
“If Congress doesn’t act to reauthorize it, and if 702 expires or is watered down, the United States will lose absolutely critical insights that we need to protect the country,” Olsen said on Tuesday.
“We’ve used it to identify and disrupt hostile foreign actors’ efforts to recruit spies in this country, or to send operatives into the United States,” Olsen said. “And we’ve relied on 702 to mitigate and prevent foreign ransomware and other cyberattacks on U.S. critical infrastructure.”
The way the FBI utilizes Section 207 has caused resentment from both Democratic and Republican lawmakers, who are calling for either an overhaul or a full repeal of FISA.
Pramila Jayapal (D-Wash.), who chairs the Congressional Progressive Caucus, called the FBI’s behavior “totally unacceptable” and a “great example” of why FISA reauthorization must include “meaningful reforms to protect Fourth Amendment rights.”
In January, Rep. Andy Biggs (R-Ariz.) introduced a bill (pdf) to end FISA as a whole, accusing the FBI and federal intelligence agencies of using “scare tactics” to convince Congress to give them “unchecked powers.”
“I will not allow the FBI to misuse privileged spying powers to conduct rogue surveillance on innocent Americans,” the Congressman said.
Rep. Jim Jordan (R-Ohio) has also expressed similar concerns, telling Fox News last year that FISA should cease to exist for good. “We need to make changes to the FISA process. I think we should not even reauthorize FISA, which is going to come up in the next Congress,” he said.