FBI spy tool renewal fight comes down to warrants

A powerful tool the intelligence community uses to gather information on foreigners is set to expire at the end of December, and while lawmakers largely agree that they want to reauthorize it with reforms, warrant requirements have become a point of contention.

“You’re going to need a warrant for ALL U.S. person searches,” Rep. Andy Biggs (R-AZ) wrote in a statement Monday night after he introduced the House Judiciary Committee’s version of the bill to renew it.

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The tool, used through Section 702 of the Foreign Intelligence Surveillance Act, allows the federal government to surveil foreigners without a warrant for national security purposes. The collected information becomes part of a vast database of foreign intelligence that incidentally includes information about U.S. citizens who may have been communicating with people overseas.

Intelligence community officials are able to search the database for the purpose of following national security leads, and the FBI, which has jurisdiction over homeland matters, has access to a portion of that database.

Because of the FBI’s well-documented history of misusing the tool, lawmakers and privacy groups across the political spectrum have been pushing to reform Section 702 before reauthorizing it. It was last reauthorized under former President Donald Trump five years ago.

Biggs has joined an unusual bipartisan and bicameral alliance in calling for requiring warrants that demonstrate probable cause before anyone in the government can search the database for information about U.S. persons. His bill carves out limited exceptions, including “emergency situations” and “certain defensive cybersecurity queries.”

Those supporting the bill include House Judiciary Committee Chairman Jim Jordan (R-OH), ranking member Rep. Jerry Nadler (D-NY), Sen. Mike Lee (R-UT), Sen. Ron Wyden (D-OR), Rep. Pramila Jayapal (D-WA), and others.

The House Intelligence Committee has its own reauthorization proposal. However, that includes a much less stringent warrant requirement, and the Senate Intelligence Committee has proposed a bill that also does not require a warrant in most cases.

Warrants are a nonstarter for the intelligence community, including the FBI. Bureau officials have argued the requirement would be detrimental because searches in the database are often time-sensitive.

FBI Director Christopher Wray said at a hearing last month that “agility and speed” are essential when accessing the database and that inserting hurdles into the process, including warrants, would make it “basically useless.”

Wray and others in the national security field who have spoken about Section 702 have emphasized that it is invaluable to countering terrorism and cybersecurity threats.

Wray gave examples to Congress in July of how querying U.S. person data has been critical to the FBI specifically. He detailed in a letter how it once allowed the bureau to quickly identify Chinese hackers targeting a major U.S. transportation hub and thwart assassination attempts, including an Iran-based attack on a government official.

But high-profile incidents of surveillance power abuse in recent years have generated skepticism on Capitol Hill about renewing Section 702.

In perhaps the most prominent example, the Department of Justice inspector general heavily criticized the FBI in 2019 for submitting multiple misleading surveillance applications to the FISA court to establish probable cause to spy on then-Trump campaign aide Carter Page. The applications contained false and inaccurate details, the inspector general found. While the applications were submitted through a different provision of FISA than Section 702, the Page incidents have nevertheless been a source of distrust as reauthorization talks progress.

In a letter Monday night, Department of Justice officials emphasized to senators that the reauthorization of Section 702 before the end of the year was urgent and cited examples of the provision’s use, including stopping a bombing attack on the New York City subway, removing an ISIS leader, and identifying destructive ransomware attacks.

Foreign terrorists are now also “seeking to exploit” the Israel-Hamas conflict, which “[raises] the specter of increased terrorist violence here at home,” wrote Assistant Attorney General Carlos Uriarte and Assistant Director of National Intelligence Matthew Rhoades in the letter.

“To be clear: any expiration of Section 702, no matter how short, would inject tremendous uncertainty and risk, endangering the [intelligence community’s] ability to gain valuable intelligence,” they wrote.

While most lawmakers agree on the tool’s value, they also acknowledge reforms are needed because the FBI has misused Section 702, specifically, in the past, resulting in hundreds of thousands of privacy breaches. Those included inappropriate warrantless queries of the surveillance database on U.S. campaign donors, George Floyd protesters, and Jan. 6 riot suspects.

“America’s intelligence community continues to conduct a warrantless, mass surveillance campaign on innocent citizens,” Biggs said in a statement. “In 2021 alone, the FBI misused FISA 278,000 times to spy on American citizens – including a U.S. congressman and political donors. Our civil liberties are at stake.”

The bureau responded to the revelations in the summer of 2021 by implementing internal reforms, and a declassified Foreign Intelligence Surveillance Court opinion released this year found the reforms were having their “desired effect” and that the FBI’s noncompliance rates on queries had drastically dropped to below 2%.

DOJ and FBI officials say they would support codifying those internal reforms into law.

Privacy groups have signaled they are largely supportive of the House Judiciary Committee’s bill and said they are skeptical of the FBI’s reforms, which include enhanced training requirements and added layers of approval before making certain queries.

“Simply codifying the internal reforms at the FBI falls short of safeguarding Americans’ civil liberties, as it overlooks the need for external oversight and transparency,” James Czerniawski, a senior policy analyst at Americans for Prosperity, told the Washington Examiner, noting the FBI safeguards still left room for abuse of the tool.

“Protecting the country’s national security and protecting Americans’ rights are not mutually exclusive goals,” Czerniawski said.

Other Section 702 reform proposals have included harsher penalties for agents found in noncompliance and limiting who can access the database.

Congress is still in the process of finalizing its various bill proposals, and which one ultimately garners the most support remains to be seen.

Another option lawmakers, including House Speaker Mike Johnson (R-LA), have floated would be to attach a temporary clean reauthorization of Section 702, meaning one with no changes, to the must-pass year-end defense bill to give lawmakers more time to settle on one set of reforms.

Some have warned, however, that this could extend Section 702 into 2025 because relevant annual certifications associated with the provision actually do not expire until early next year.

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Sean Vitka, a policy director at Demand Progress, said his group viewed a temporary extension of Section 702 as “an attempt to stall debate that really needs to happen as soon as possible.”

“We are very confident that for better or worse [Section 702] can continue [after Dec. 31], given how clear the statute is on this question,” Vitka said. “This creates a question, a very serious one, as to whether or not the real strategy here is to extend it long enough for the administration to obtain new certifications in the beginning of 2024. If they do that, that would mean that Section 702 surveillance is continuing in practice into 2025 no matter what Congress does.”