On Tuesday, top officials from the Biden administration’s FBI, CIA, Office of the Director of National Intelligence (ODNI), National Security Agency (NSA), and the Department of Justice (DOJ) appealed to the Senate Judiciary Committee to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA). They argue that this section is “invaluable” and “indispensable” for the Biden administration’s surveillance operations, despite criticism that it has enabled warrantless spying on American citizens’ private communications.
In a joint statement, NSA deputy director George Barnes, CIA deputy director David Cohen, FBI deputy director Paul Abbate, ODNI general counsel Chris Fonzone, and DOJ assistant attorney general Matthew Olsen, highlighted the perceived importance of Section 702, stating that it “helps protect Americans” every day from “terrorist plots, weapons of mass destruction, malicious cyber activity, and hostile state behavior from China and Russia.” They described it as not only “an elegant solution to an operational challenge created by the advent of the Internet” but also a “cornerstone of our Intelligence Community’s efforts to identify and understand a broad range of challenges our country faces in an increasingly complex and dangerous world.”
Section 702, enacted by Congress in 2008, empowers the government to spy on foreign nationals located outside the United States with the coerced aid of electronic communication service providers. The provision was deemed necessary due to the rise in foreign adversaries using US email services.
However, this has also led to warrantless surveillance of American citizens, with their personal communications subject to unwarranted collection and storage. The FBI acknowledged in the hearing that there were 278,000 “unintentional” back-door search queries of the 702 database for private communications of Americans between 2020 and 2021. An audit in December exposed instances where FBI analysts queried the Section 702 repository using Americans’ identifiers for unapproved reasons, raising serious concerns about potential violations of the Fourth Amendment’s privacy protections.
Despite these concerns, Biden’s spy chiefs asserted the importance of preserving Section 702. However, multiple senators expressed skepticism about the intelligence community’s ability to wield FISA responsibly. Sen. Mike Lee (R-UT), pointed out the agencies’ record of abuse and doubted that their proposed reforms would improve the situation.
Lee later tweeted, “Democrats and Republicans agree that FBI can’t be trusted to wield its FISA authority responsibly. It’s time to clip FBI’s wings.”
Sen. Ted Cruz (R-TX) critiqued the FBI’s perceived lack of accountability, stating, “The FBI has, right now, an unlimited hubris that you believe you are unaccountable. You don’t believe you’re accountable to the United States Congress, and you don’t believe you’re accountable to the American people, and you are doing damage.”
On the other side of the spectrum, Sen. Lindsey Graham (R-SC) acknowledged the abuse of 702 but recommended Congress “reauthorize this program and build in some safeguards,” while Senate Judiciary Committee Chair, Sen. Dick Durbin (D-IL), declared his support for reauthorization only if it involves “significant reforms” addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.
