Congress will not renew powerful, expiring surveillance authorities without substantial changes to shield Americans from warrantless eavesdropping, senators in both parties warned Biden administration officials Tuesday.
That message came during a Senate Judiciary Committee hearing where national security officials pressed their case for reauthorizing the surveillance powers, known as Section 702, in part by revealing previously classified details about how spy agencies have used those authorities to combat threats such as fentanyl trafficking and prominent ransomware attacks.
Section 702 permits warrantless surveillance against foreign targets but occasionally collects communications with Americans, which go into a database. The law allows investigators to search that database by using U.S. phone numbers, email addresses and other identifiers. One of the chief sticking points raised by legislators is whether Section 702 should be amended to require a warrant to access information about Americans.
The FBI can search the database when they have evidence of crimes or for foreign intelligence purposes. But that process has been far from perfect: A recently unsealed court document revealed that the FBI had misused the database more than 278,000 times between 2020 and early 2021, including against thousands of donors to a congressional candidate and people protesting the police killing of George Floyd.
"I will only support the reauthorization of Section 702 if there are significant, significant reforms," said Senate Judiciary Chairman Richard J. Durbin (D-Ill.). "And that means first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment. Moreover, the reforms must also include safeguards to prevent future abuses and ensure effective oversight by Congress and the courts."
Section 702 is set to expire at the end of this year, and the Judiciary Committee shares jurisdiction in steering the law's fate alongside the Senate Intelligence Committee and their House counterparts. Durbin said he would work to bridge the gap between deep skeptics of Section 702 and those who favor only small changes.
The top Republican on the committee, Lindsey O. Graham (S.C.), said that in the United States broadly, "there's a warrant requirement to investigate an American citizen for wrongdoing. And we don't want this to be used to get around that requirement. So bottom line is, let's reauthorize this program and build in some safeguards."
Biden administration officials argued that expiration of the surveillance powers, conceived as a counterterrorism tool in the aftermath of 9/11, would be devastating. They also warned that the kind of warrant requirement that some senators and civil liberties groups are seeking would clog the courts and slow the government response to security threats.
"We must not forget the lessons of 9/11," said Matt Olsen, the assistant attorney general for national security. "Unduly limiting the FBI's ability to access lawfully collected information ... will set us back decades. It will put our nation at grave risk."
Biden administration officials highlighted what they claimed were Section 702 successes Tuesday following the declassification of partial details. Using the surveillance authorities, they were able to identify the hacker behind the 2021 Colonial Pipeline ransomware attack that sparked a fuel panic on the East Coast, said George Barnes, deputy director of the National Security Agency.
They've also used the authorities to combat the spread of the drug fentanyl, which kills nearly 100,000 Americans every year, he said. Section 702 provided insights into the Chinese origins of precursor chemicals and allowed the U.S. government to learn more about how foreign narcotics traffickers are smuggling the drug into the United States, Barnes said.
But Democratic and Republican senators alike remained skeptical about the Biden administration's case for renewing Section 702, which falls under a law known as the Foreign Intelligence Surveillance Act (FISA).
"Why should we ever trust the FBI and DOJ again to police themselves under FISA when they've shown us repeatedly over more than a decade that they cannot be trusted to do so?" Sen. Mike Lee (R-Utah) said.
Biden administration officials sought to calm congressional worries about the use of Section 702 and the potential for abuse. Procedural changes at the FBI in 2021 and 2022 have cut the number of searches of U.S. individuals by 94 percent, said FBI Deputy Director Paul Abbate, and improved compliance with the rules. The administration would not oppose Congress codifying those procedural changes so they were a matter of law rather than agency policy, he said.
The "compliance errors" such as those highlighted in the recently unsealed court document are "entirely unacceptable," he said. "It is difficult to express strongly enough in words how disappointed I am in these failures."
(Wikicommons)
