The Biden administration has formally urged Congress to reauthorize a high-profile warrantless surveillance program, warning in a letter to top lawmakers that allowing the provision to expire could sharply limit the intelligence on foreign threats and targets the government collects.
The law – named section 702 – allows the US government to collect the communications of targeted foreigners abroad by compelling service providers like Google to produce copies of messages and internet data, or networks like Verizon to intercept and turn over phone call and message data.
But the law is controversial because it allows the government to incidentally collect messages and phone data of Americans without a court order if they interacted with the foreign target, even though the law prohibits section 702 from being used by the NSA to specifically target US citizens.
The administration’s efforts to reauthorize section 702 as it currently stands could face increased resistance this year, with Republicans on the House judiciary committee sharing Donald Trump’s distrust of intelligence agencies and past FBI errors in using the warrantless surveillance authority.
To that end, the administration moved to cast the provision that would otherwise expire at the end of 2023 as an essential tool to gather intelligence about terrorists, weapons proliferators, hackers and other foreign targets located overseas who use US telecommunication providers.
“The information acquired using Section 702 plays a key role in keeping the United States, its citizens, and its allies safe,” the Attorney General Merrick Garland and the director of national intelligence, Avril Haines, wrote in the letter sent Monday. “There is no way to replicate Section 702’s speed, reliability, specificity and insight.”
Congress enacted section 702 as part of a 2008 amendment to the Foreign Intelligence Surveillance Act (FISA) of 1978 that legalized the kind of surveillance used in the secret “Stellarwind” warrantless wiretapping program authorized by George Bush after the 11 September 2001 terrorist attacks.
The provision continues to be used as a counterintelligence tool, the letter said, and played a role in the drone strike last year that killed al-Qaida leader Ayman Al-Zawahiri. Section 702 information remains a large portion of the presidential daily brief, a source familiar with the matter added.
But the government has moved to use the full scope of the powers from section 702, including as it applies to US citizens.
When the NSA collects incidental intercepts between foreign targets and Americans, it generally stores the raw messages for five years in a searchable database where agents can use Americans’ identifiers – like names, email addresses, phone numbers and social security numbers – to filter results.
The database is also accessible to the FBI for domestic investigations in certain circumstances, in a practice decried by civil liberties groups as a “back door search loophole” to the fourth amendment requirement that the government obtain search warrants to access Americans’ private communications.
For Americans’ information, the NSA, CIA and National Counterterrorism Center need a reason to believe the surveillance would reveal information about foreign intelligence. Since 2018, the FBI has needed a court order to review anything in criminal investigations with no link to national security.
The recent requirement for the FBI came in part after an inspector general report found repeated errors and omissions during its Russia investigation in applications for FISA wiretaps against Trump 2016 campaign aide Carter Page – though the authority for that kind of wiretapping is not the one that is expiring.
The FBI missteps with Page has led Trump allies on Capitol Hill, most notably the Republican chair of the House judiciary committee Jim Jordan who shares jurisdiction over FISA with the intelligence committee, to tell Fox News last year: “I think we should not even reauthorize FISA.”
The letter to top lawmakers came as the head of the US justice department’s national security division and former FBI official Matthew Olsen made the case for reauthorizing section 702 in remarks at the Brookings Institute in Washington, DC.
“Its value cannot be overstated,” Olsen said. “Without 702, we will lose indispensable intelligence for our decision makers and warfighters, as well as those of our allies. And we have no fallback authority that could come close to making up for that loss.”
