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In fight over key surveillance law, officials look to sway congressional skeptics

Yuichiro Chino
Getty Images

The Biden administration and Congress are wrestling over the fate of a surveillance law that U.S. officials say is one of the government's best tools to gather foreign intelligence on everything from terrorists and hackers to Russia and China.

The statute, known as Section 702 of the Foreign Intelligence Surveillance Act, is set to expire at the end of the year, unless Congress reauthorizes it. American officials say the program is a critical source of key intelligence on high-priority threats, and they warn that failing to renew it would deal a significant blow to national security.

But a growing number of lawmakers has expressed concerns about the program — and the government's surveillance powers more broadly — setting up what's expected to be a tough, months-long battle over Section 702.


Those dynamics were on display at a recent Senate hearing with Attorney General Merrick Garland.

Asked about the importance of the program, Garland told lawmakers that an "enormously large percentage" of the information he receives in his daily all-threats briefing comes from 702 collection. Failing to reauthorize the law, he warned, would be self-defeating.

"We would be intentionally blinding ourselves to extraordinary danger in my view," he said. "This is not a view I've always had. This is something I've learned as I've been at the department."

Sen. Mike Lee, a Utah Republican and longtime skeptic of government surveillance powers, made clear that the law wouldn't get a free pass.

"You can tell your department that there's not a chance in hell we're going to be reauthorizing that thing without some major, major reforms," Lee told Garland.


Section 702 allows the government to collect — without a warrant — emails, text messages and phone calls of foreigners overseas, even when they're talking to Americans.

Congress has reauthorized the law twice before, over the objections of progressives and libertarians who wanted more civil liberties protections.

Back then, Republicans by and large were supporters of government surveillance powers.

But the political winds have shifted on Capitol Hill following revelations about FISA violations, most notably a case involving former 2016 Trump campaign adviser Carter Page.

The FBI's surveillance of Page was not conducted under Section 702 of FISA, but Republicans still point to it as an example of what they say is a broader problem with FISA and the FBI.

Section 702 has seen its own share of problems, as well, though. A recent government report documented violations, including the FBI's searching 702 databases for information about a sitting U.S. congressman as well as a local political party

"There have been and there continue to be many abuses of FISA. It must be reformed," the Republican chairman of the House Intelligence Committee, Rep. Mike Turner of Ohio, told a panel to top U.S. intelligence officials recently.

Turner has established a committee working group to come up with proposals for reforms.

Previous efforts to change Section 702 have fallen short. But the current political dynamics present a rare chance to get changes on the books, says Elizabeth Goitein of the Brennan Center for Justice.

"This is a once in a generation opportunity for reform because there is broad bipartisan support," Goitein said.

Section 702, she said, was created to conduct surveillance of foreigner terrorists, "but it's also used for many, many other things that Congress never intended, including spying on Americans here in the United States."

The starting point for reform, in her view, is requiring the government to get a warrant before searching 702 data for Americans' communications.

FBI Director Chris Wray has acknowledged that the bureau has made mistakes in its use of Section 702 and other FISA authorities. But he says the FBI has implemented a series of internal reforms to address those problems, although privacy advocates and many lawmakers remain skeptical that the issues are fixed.

Other intelligence leaders, meanwhile, have adjusted how they talk about Section 702 to lobby for its renewal. For years, the focus was on what officials said was the program's central role in the fight against terrorism.

Now, it's "principally relied upon for vital vital insights across a range of high-priority threats," Director of National Intelligence Avril Haines told House lawmakers.

She rattled off a list of examples: "Malicious cyberactors targeting U.S. critical infrastructure, U.S. government efforts to stop components of weapons of mass destruction from reaching foreign actors and even key intelligence related to threats emanating from China, Russia, North Korea, Iran."

CIA Director William Burns added that 702 has also helped in the fight against fentanyl trafficking and production, as well as the Mexican cartels.

The fact that usually tight-lipped intelligence officials are willing to provide public examples of what they say are Section 702 successes is notable, as is the fact that they're doing so some 10 months before the law expires.

Both signal that the administration is aware of the challenges ahead in convincing a skeptical Congress to renew it.

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