House Intel Launches Bipartisan Effort to Renew Program That’s Allowed Warrantless Surveillance of Americans

The House Intelligence Committee has named a panel of three Democrats and three Republicans to lead the effort to save Section 702 of the Foreign Intelligence Security Act (FISA), which gives the intelligence community broad power to surveil foreigners abroad, but can also be used to surveil Americans without a warrant if those Americans are in contact with foreign targets.

The program, authorized by Congress in 2008 after beginning in the executive branch, is set to expire on December 31, 2023. The Biden administration has urged Congress to renew the program despite widespread pushback from across the political spectrum. Officials have cited Section 702 as an important tool to disrupt terrorism and have asserted it contributed to the killing of al-Qaida leader Ayman al-Zawahri in a drone strike last August, according to the Associated Press.

House Intelligence chairman Mike Turner (R., Ohio) backed the reauthorization of the program but told Politico there need to be “corrections…to protect American citizens’ constitutional rights.”

“Our FISA Working Group…is committed to finding bipartisan solutions to reform the Intelligence Community’s foreign surveillance tools,” he added, referring to the bipartisan panel which includes Representatives Brian Fitzpatrick (R, Pa.) and Joaquin Castro (D., Texas).

Administration officials have lobbied both chambers to get the process of renewing the program started.

“The bottom line is that Section 702 gives us the intelligence that’s necessary for us to stay one step ahead of our adversaries, and we cannot afford to let it lapse. So, it is time to sound the alarm. We must act with urgency” said assistant attorney general Matthew Olsen, the Justice Department’s top national security official.

President Donald Trump placed the program in the spotlight the last time it came up for renewal in 2018, accusing the intelligence community of abusing the FISA process to surveil his campaign. The former president would later relent and reauthorize Section 702, acknowledging in a tweet that that particular part of FISA was not at issue. However, in the years since, skepticism to the program has grown among Republicans concerned with the politicization of the intelligence community, joining longstanding advocates of privacy and civil liberties from both parties.

Earlier this month, Representative Darin LaHood (R., Ill.), who is also on the aforementioned House working group, said he believed he had been surveilled through Section 702. He made that determination after reviewing a declassified report on the program. The report disclosed an incident in which an FBI analyst violated the rules for searching a repository of messages intercepted by the program by making overly broad queries about an undisclosed member of Congress, according to the New York Times.

“It is my opinion that the member of Congress who was wrongfully queried multiple times solely by his name was, in fact, me,” LaHood said.

Under U.S. law, a warrant has to be obtained in order to surveil the communications of Americans in the U.S. The Electronic Communications Privacy Act of 1986 expanded the 1968 Wiretap Statute to include communications other than telephone calls.

A U.S. citizen can also be surveilled under Title I of FISA. Under that part of the act, if the government wants to target a U.S. person, they are required to get a court order of probable cause that the target is an agent of a foreign power or engaged in foreign or counterintelligence activities.

Under Section 702, the FISA Court does not mandate particular targeting or a warrant as under traditional surveillance law. It allows for the searching or querying of the communications of U.S. citizens stateside if they have had communication with a foreign target. The government can search the gathered information from foreigners and citizens alike for any purpose as long as it reasonably believes a search will be likely to return foreign intelligence information or evidence of a crime.

Travis LeBlanc, a lawyer and Member of the Privacy and Civil Liberties Oversight Board within the executive branch, explained to Lawfare that “when architecting the program in the United States, we could have architected the program a different way…to only collect foreign-to-foreign communications. Instead we’ve allowed the collection of domestic communications where at least one person is a foreigner.”

“In my view, we are essentially treating international communications by U.S. persons as waiving any privacy interest in those communications. That really highlights the constitutional and legal challenges the program has faced,” LeBlanc said.

Internet service providers are frequently issued a directive on account of which they are required to send information to the government. While these providers can challenge these directives in front of the FISA Court, they rarely do so.

During the 2018 debate to renew the program, pressure was put upon the intelligence community to calculate the number of U.S. persons whose communications are being surveilled by the program. Director of National Intelligence Dan Coats testified to the Senate at the time that “it remains infeasible to generate an exact, accurate, meaningful and responsible methodology that can count how often a U.S. person’s communications may be incidentally collected under 702.”

Senator Ron Wyden (D., Ore.), a longtime member of the Senate Intelligence Committee, was unimpressed with Coats’s argument and demanded that some estimate be reached to help Congress put a number to their privacy concerns.

Wyden is still trying to get to the bottom of this and told the Associated Press that Section 702 “is representative of one of the most important challenges of our time, particularly for policymakers, which is to demonstrate that security and liberty are not mutually exclusive.”

LeBlanc said that determining that number is not infeasible, pointing to the research of computer scientist Jonathan Mayer, who believes it can be done through secure multi-party computation.

Commonsense reforms to Section 702 have been proposed such as requiring an intelligence analyst to tag a communication when they reasonably believe it to be from a U.S. person. Another reform would be to ensure that agencies like the FBI are only running queries through the Section 702 database for issues that are genuine national-security issues.

“Clearly, the use of Section 702 to at least query is much more expansive than approved and has gone in the past beyond even Title 18 evidence of a crime and foreign intelligence information,” explained LeBlanc, pointing to FBI analysts vetting pastors, office repairmen, members of the FBI Citizens Academy, and members of Congress through the database in the past.

LeBlanc clarified that he agreed with Olsen that the program has been effective in fighting terrorism and that compliance is improving. He supports reauthorization as long as the program is reformed.

Earlier this month, FBI director Christopher Wray explained that the number of times the FBI searched U.S. citizens’s information in the database dropped by more than 93 percent in 2022, according to Voice of America.

Elizabeth Goitein, senior director for liberty and national security at the Brennan Center for Justice, put that figure in a different light, tweeting that even with the drop, “the FBI is conducting up to 559 warrantless searches for Americans’s phone calls, texts, and emails *every day.*”