Section 702 of the Foreign Intelligence Surveillance Act was requested to be renewed by the Senate Judiciary Committee on Tuesday in order for the Biden administration to carry on eavesdropping on the communications of American individuals.
Senior officials from the FBI, CIA, Office of the Director of National Intelligence, NSA, and DOJ described 702 as “invaluable” and “indispensable,” occasionally citing the 9/11 attacks by Islamists as enduring justification for extensive warrantless surveillance, despite the possibility that millions of Americans might become entangled in the dragnet.
Together with Chris Fonzone, general counsel for the ODNI, and Matthew Olsen, assistant attorney general for the DOJ’s National Security Division, the deputy directors of the NSA, CIA, and FBI released a statement asserting that 702 “helps protect Americans” every day by shielding them from “terrorist plots, weapons of mass destruction, malicious cyber activity, and hostile state behavior from China and Russia.”
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,” according to the intelligence officials, 702 is additionally “an elegant solution to an operational challenge created by the advent of the Internet.”
Additionally, they stated that only last year, 246,073 targets were allowed for “collection” under Section 702.
Congress passed Section 702 of the FISA Act in 2008, allowing the government to snoop on foreign nationals living outside the country with the coerced assistance of digital communication service companies.
By the middle of the 2000s, “many terrorists and other foreign adversaries were using email accounts serviced by U.S. companies,” according to the ODNI, necessitating the need for Section 702. The government had to request individual court orders based on a finding of probable cause in order to collect the communications of foreign individuals who were not Americans because of this change in the medium of communication.
The cost of going through the legal system “proved costly due to the resources required and because the government couldn’t always meet the probable cause standard, which was designed to protect U.S. persons and persons in the U.S.”
The FBI recognizes that while the program is supposedly designed to target foreign persons abroad “who are expected to possess, receive, or communicate foreign intelligence information,” those who are targeted “may send an email or have a phone call with a U.S. person.”
Americans may thus be exposed to unwarranted surveillance under Section 702, and as a result of Section 702, their phone conversations, text messages, emails, and other communications may be intercepted and retained.
The New York Times noted that analysts at the organizations mentioned above can conduct searches for data that belongs to Americans who were spied on with no warrant by using Americans’ identifiers, such as names, Social Security numbers, passport numbers, and email addresses as search terms. Data belonging to Americans who were spied on with no warrant is usually retained by the government for a period of five years.
Critics of 702 contend that these inquiries give the government a way to get around the Fourth Amendment’s mandate that they must obtain a warrant before invading Americans’ privacy.
The Times said that a December audit found many occasions where “F.B.I. analysts queried the Section 702 repository using Americans’ identifiers for unapproved reasons, such as vetting potential informants or maintenance workers.”
The FBI said there were approximately 278,000 “unintentional” back-door searches of the 702 database for American citizens’ private messages between 2020 and 2021 alone at the hearing on Tuesday.
Various Jan. 6 protestors, contributors to a congressional campaign, and BLM protesters were among individuals who were made subject to the unlawful searches, according to the U.S. Foreign Intelligence Surveillance Court, stated the Register.
Abbate claimed that despite widespread and frequent abuse, 702 was still valuable.
In a later statement, committee member Sen. Mike Lee (R-Utah) said, “FBI’s tone on FISA was shockingly defiant and at times indignant at today’s hearing. That’s really something for an agency that has admitted to 278,000 ‘accidental’ warrantless searches of American citizens.”
The Utah senator emphasized that the intelligence agencies’ history of misuse made it unlikely that their suggested improvements would make a difference, even if they were implemented in the first place, and that Americans’ fundamental rights were being abused.
— Mike Lee (@SenMikeLee) June 13, 2023
Later, Lee 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. I’m working on bipartisan FISA reforms to protect Americans from warrantless ‘backdoor’ FISA searches.'”
Senator Ted Cruz, who is a committee member, stated at the hearing that “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.”
Despite acknowledging that 702 “has been abused,” Sen. Lindsey Graham (R-S.C.) recommended that Congress “reauthorize this program and build in some safeguards,” according to the Register.
The Chairman of the Senate Judiciary Committee, Democrats Dick Durbin, said, “I will only support the reauthorization of Section 702 of Foreign Intelligence Surveillance Act if there are significant reforms. … And that means first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”