Why Spy Agencies May Lose Sweeping Surveillance Powers

The last time America’s intelligence agencies asked Congress to renew one of their most controversial surveillance programs, then-President Trump briefly sided with its opponents before backing down at the last minute. Five years later, an unlikely coalition of MAGA loyalists and left-wing civil liberties advocates may deliver on Trump’s initial impulse, and Biden officials are scrambling to save a program they say is vital to U.S. national security.

The White House, Justice Department, and intelligence agencies on Tuesday warned of dire consequences if lawmakers don’t reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act, which is set to expire by the end of the year. The broad surveillance program allows the National Security Agency (NSA) to collect the communications of foreigners abroad, including from tech firms like Google, Microsoft, Apple and Meta. But it also sweeps up all of their interactions with those inside the country, which has allowed the FBI to routinely search and review the personal data of millions of Americans without obtaining a warrant.

Recent revelations about the FBI’s routine use of this trove of data to access Americans’ communications—including phone calls, emails, and text messages—has led to growing criticism that the program has become a domestic spying tool. Combined with conservative distrust of government security agencies and backlash to what Republicans call the “weaponization of government” has made it increasingly unlikely that lawmakers will renew the program without demanding a significant overhaul.

National security officials on Tuesday warned that would be a mistake. “The stakes are incredibly high,” Assistant Attorney General Matthew Olsen, who heads the Justice Department’s national security division, said in a speech at the Washington-based Brookings Institution. “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.”

The full-court press launched by the administration shows just how seriously they take the threat to the program which is set to lapse in December. In a letter sent to Congress earlier Tuesday morning, Attorney General Merrick Garland and Director of National Intelligence Avril Haines called the reauthorization “a top legislative priority” for the Biden administration and argued that it has “proven invaluable again and again in protecting American lives and U.S. national security” over the past 15 years. “There is no way to replicate Section 702’s speed, reliability, specificity and insight,” they wrote. Tuesday’s push will be followed by public appeals, with Garland testifying before the Senate Judiciary Committee on Wednesday and Haines testifying before the Senate and House Intelligence Committees next week.

Officials on Tuesday pointed to past successes where they say the information gathered through the program saved the lives of U.S. troops, identified foreign spies, foiled cyber plots and neutralized terrorist threats, including the operation that killed al-Qaeda leader Ayman al-Zawahiri last year. They also outlined hypothetical scenarios, emphasizing the economic and cyber threats posed by countries like China, Russia and Iran, expanding beyond the traditional focus on counter-terrorism.

“Section 702 has proven a cornerstone of U.S. national security,” White House National Security Advisor Jake Sullivan said in a statement on Tuesday, adding that the White House hoped to “engage constructively with the Congress to preserve this essential tool for protecting the United States.”

The outcome of this battle to balance national security, oversight, and constitutional protections may define electronic espionage in the post-Trump era just as intelligence reforms in the 1970s defined spying for decades after Watergate.

What is Section 702?

Congress approved FISA’s Section 702 in 2008, legalizing a controversial post-9/11 wiretapping program that allowed the government to conduct massive warrantless electronic surveillance of suspected foreign terrorists and their associates. It has renewed the program twice since then. When the program’s renewal was last debated in 2017, tech firms including Facebook, Google, Microsoft and Amazon pressed lawmakers to demand reforms, citing privacy concerns.

The NSA routinely shares parts of the raw surveillance data collected under Section 702 with the FBI, CIA, and other national security agencies which can retain them for up to five years. Even though its surveillance has to target foreigners abroad, the program also sweeps up large quantities of communications by Americans, such as calls, emails and text messages.

U.S. national security officials have long defended Section 702 as one of the government’s most valuable tools to gather foreign intelligence to foil terrorist and cyber attacks, track spies and identify threats to U.S. troops. The Biden administration began gearing up to make a more aggressive case for its renewal earlier this year.

“We have saved lives because of 702,” Gen. Paul Nakasone, who heads the NSA and U.S. Cyber Command, said in a speech in January in which he called the program “irreplaceable.”

Olsen echoed these remarks on Tuesday, listing several hypothetical future scenarios to illustrate where information collected by the program would be critical: tracking down a terrorist network from emails collected from the phone of someone captured on the battlefield or disrupting the scheme of a foreign actor trying to recruit U.S. employees at a semiconductor company to gain access to sensitive U.S. technology.

“If Congress doesn’t act to reauthorize it, and if 702 expires or is watered down, the United States will lose absolutely critical insights that we need to protect the country,” Olsen said.

Why Section 702 is so controversial

The U.S. intelligence community faces much stronger resistance than it did the last time the program was reauthorized in 2018. Several opinions from the secretive FISA Court and government reports in recent years revealed “widespread violations” by the FBI, including examples where agents seemed intentionally to access Americans’ data that had been “incidentally” collected user Section 702. The reports showed how the FBI, which has access to part of the full 702 database, routinely performed so-called “backdoor searches” for domestic investigations that did not involve foreign intelligence or national security issues.

A 2018 opinion by the Foreign Intelligence Surveillance Court (FISC) noted the “large number of FBI queries that were not reasonably likely to return foreign-intelligence information or evidence of a crime,” saying the agency’s actions “present a serious risk of unwarranted intrusion into the private communications of a large number of U.S. persons.”

While it’s unclear how many Americans’ communications have been swept up under the program, a report from the Office of the DNI published last April showed that from Dec. 2020 to Nov. 2021 the FBI queried Section 702 data up to 3.4 million times for information about U.S. persons. It was the first year these numbers had been made public since 2013, when the office began recording surveillance statistics. According to the FBI data, at least 1.9 million queries were done as part of an investigation into attempted foreign cyber attacks.

“For anyone outside the U.S. government, the astronomical number of FBI searches of Americans’ communications is either highly alarming or entirely meaningless,” Sen. Ron Wyden, D-Ore., a senior member of the Senate Intelligence Committee, said when the FBI numbers were released last year. “Somewhere in all that over-counting are real numbers of FBI searches… numbers that Congress and the American people need before Section 702 is reauthorized. Baseline transparency is essential if the federal government wants to hold such sweeping surveillance powers.”

Rep. Pramila Jayapal, a Washington Democrat who chairs the Congressional Progressive Caucus, tweeted earlier this month that “any FISA reauthorization must include meaningful reforms to protect Fourth Amendment rights.”

Meanwhile, Republican lawmakers have rallied around the government’s use of a flawed warrant to conduct surveillance of Trump associate Carter Page, which a 2019 investigation by the Justice Department’s inspector general found to have “at least 17 significant errors and omissions.” The warrant was obtained under a different FISA authority, not Section 702—a distinction that helped 702 supporters blunt Trump’s initial skepticism about reauthorizing the program in 2017.

But now, in the midst of an increasingly polarized debate about the FBI and what some Republicans term the “weaponization” of the federal government, some have threatened not to renew it at all. “I think we should not even reauthorize FISA, which is going to come up in the next Congress,” Rep. Jim Jordan, an Ohio Republican who chairs the Judiciary Committee, said in a television interview last October.

Biden administration officials on Tuesday tried to assuage the fears on both ends of the political spectrum. While he acknowledged that “mistakes that we made cost us with the American people and with Congress,” Olsen argued that recent changes were meant to fix compliance issues and build trust in the program. He pointed to reforms adopted by the FBI in 2021, which he said led to a “dramatic decrease in the total number of U.S. person queries” and a “significant reduction in the number of inadvertent queries of 702 data.”

But Olsen also warned about the time pressure, noting that while the law is set to expire on Dec. 31, national security officials are pushing lawmakers to commit to renewing it as soon as possible. Otherwise, “the impact would be felt immediately,” he said.