US lawmakers and intelligence community clash over foreign surveillance

The US intelligence community seeks to reauthorize a controversial surveillance program known as 702 without any substantial changes. But some lawmakers are pushing for reforms.

Section 702 of the US Foreign Intelligence Surveillance Act (FISA) enables the government to gather vast amounts of intelligence under the broad category of foreign intelligence information, without first seeking a warrant.

The controversial spying tool is set to expire at the end of the year, so the intelligence community is worried. Officials say that the program’s expiration would impede important investigations into, for example, terrorism.

A glaring loophole

In the US Senate last week, director of the National Counterterrorism Center Christine Abizaid urged Congress to renew the surveillance program and cited the October 7th Hamas attacks in Israel.

“As evidenced by the events of the past month, the terrorist threat landscape is highly dynamic and our country must preserve counterterrorism fundamentals to ensure constant vigilance,” said Abizaid.

On the surface, the renewal wouldn’t be too controversial – foreign intelligence capabilities are vital to ensure US national security, and they have been enhanced massively in the aftermath of 9/11.

Indeed, FISA Section 702 allows intelligence agencies to conduct warrantless surveillance of only non-American citizens outside the US during investigations.

The problem is that the law enables the targeting of US citizens in contact with foreign nationals. This loophole allows the program to inadvertently collect texts, emails, and other communications from US citizens.

The information – again, not only on non-Americans – collected through Section 702 requests is stored for several years in a searchable database that intelligence agencies can later access in other investigations.

No wonder privacy activists aren’t happy. And it’s not only advocacy groups – in May 2023, the Office of the Director of National Intelligence said it had found multiple cases of FISA misuse over the past years.

For instance, the Foreign Intelligence Surveillance Court found earlier this year that the Federal Bureau of Investigation had improperly used the Section 702 database to search for information about a US Senator, a state senator and a state-level judge.

First, get a warrant

Now, US lawmakers – both Democrats and Republicans – are pushing to only reauthorize the FISA Section 702 if several reforms, mostly adding protections for Americans, are implemented.

The Government Surveillance Reform Act, a bipartisan blueprint introduced this week, would prohibit the collection of US-based communications and require US law enforcement and intelligence agencies to obtain a court warrant before searching the data of US citizens against the FISA data set.

“Americans know that it is possible to confront our country’s adversaries ferociously without throwing our constitutional rights in the trash can. But for too long surveillance laws have not kept up with changing times,” said senator Ron Wyden, a Democrat representing Oregon.

“Our Founding Fathers made it clear that if government agencies want to read an American's private communications, they should get a warrant,”

Ron Wyden.

“Our bill continues to give government agencies broad authority to collect information on threats at home and abroad, including the ability to act quickly in emergencies and settle up with the court later. But it creates much stronger protections for the privacy of law-abiding Americans, and restores the warrant protections that are at the heart of the Fourth Amendment.”

Indeed, the bill would allow for searches of American citizens’ data in cases where a person is the subject of a criminal warrant and where there’s an imminent threat of death or serious physical harm to others.

But Wyden stressed: “Our Founding Fathers made it clear that if government agencies want to read an American's private communications, they should get a warrant.”

The bill is supported by various privacy-minded organizations, including the Electronic Frontier Foundation (EFF), a non-profit digital rights group promoting civil liberties online.

“The program was intended to collect communications of people outside of the United States, but because we live in an increasingly globalized world, the government retains a massive trove of communications between people overseas on US persons.

Increasingly, it’s this US side of digital conversations that are being routinely sifted through by domestic law enforcement agencies – all without a warrant,” said the EFF.

The screech of the spying hawks

The bill also goes beyond FISA and prohibits US government agencies from purchasing Americans' data from data brokers, a tactic used in the past for warrantless surveillance.

However, there’s pushback by surveillance hawks in Congress. Rep. Jim Himes, the ranking Democrat on the House Intelligence committee, has already said that plans were underway to prepare a stopgap measure and preserve Section 702 in its current form until long-term reauthorization measures are agreed.

The FBI Director, Christopher Wray, addressed the future of Section 702 in a letter to all US lawmakers in July and said that the Bureau found “very few instances of FBI personnel maliciously running non-compliant queries against our Section 702 collection.”

And in October, Wray told a Senate committee that he opposed a proposal to require the government to get a warrant before searching through foreign surveillance data for information on Americans.

Finally, US President Joe Biden’s administration believes the new legislation is "both the wrong fit for what we're doing and operationally unworkable," Axios reported this week.