FBI Director Christopher Wray told a Senate committee Tuesday he opposes a proposal to require the government to get a warrant before searching through foreign surveillance data for information on Americans.
Privacy advocates and some lawmakers have raised the possibility of adding such a requirement as Congress considers the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. The authority expires at the end of the year and has been the subject of heated debate on Capitol Hill.
Section 702 allows the U.S. government to collect the digital communications of foreigners who are located outside the country. But some lawmakers from both parties have lambasted the breadth of the surveillance power and zeroed in on privacy concerns, such as how it allows U.S. authorities to run warrantless searches for information on Americans.
Wray on Tuesday urged the Senate Homeland Security and Governmental Affairs Committee to reauthorize the foreign surveillance authority but leave out changes that he said could hamper the FBI’s ability to protect Americans from terrorist attacks.
“With everything going on in the world, imagine if a foreign terrorist overseas directs an operative to carry out an attack here on our own backyard, but we’re not able to disrupt it because the FBI’s authorities have been so watered down,” Wray told lawmakers.
In written testimony to the panel, Wray said a warrant requirement would amount to a “de facto ban” on a “U.S. person query” of information previously obtained through use of Section 702.
That’s because search applications would not satisfy the legal standard to get court approval, Wray wrote. When the standard could be met, it would mean the use of “scarce resources” and take up significant time that the government often does not have in a world of evolving threats, he wrote.
Sen. Rand Paul, the top Republican on the Homeland Security Committee, said Tuesday that the FBI continues to misuse its Section 702 authority.
“You would think we’d be going after foreigners, but we are using the Foreign Intelligence Surveillance Act to go after Americans,” Paul said.
An independent U.S. government board weeks ago recommended that Congress add greater oversight for when authorities want to search for information on Americans. The board said authorization from the Foreign Intelligence Surveillance Court, or FISC, should be required for those types of searches.
The FISC itself has found “persistent and widespread” compliance problems with the FBI’s searches under Section 702. A court opinion released earlier this year found that the FBI had improperly searched foreign surveillance information using the last names of a U.S. senator and a state-level politician.
While the specifics remain unclear, requiring a warrant or court order when searching for information about Americans could become a sticking point as the authority’s end-of-year expiration date approaches.
The leaders of the Senate and House Judiciary committees both have spoken critically about the current program.
Senate Judiciary Chair Richard J. Durbin, D-Ill., has pledged to only support Section 702 reauthorization if there are “significant reforms,” which he said means “first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”
Also at Tuesday’s hearing, Homeland Security Secretary Alejandro Mayorkas endorsed the renewal of Section 702 and said letting the authority expire “would leave our country vulnerable to attacks supported by American citizens.”
“And it would cripple our ability to identify and secure American citizens who are the targets of such attacks,” he told lawmakers.
A third official appearing before lawmakers, Christine Abizaid, director of the National Counterterrorism Center, said Section 702 provides key indications on terrorist plans and gives authorities “strategic insight into foreign terrorists and their networks overseas.”
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