Officials from the Biden administration pleaded with Congress on Tuesday to renew a monitoring program the American government has long regarded as essential in thwarting international terrorism, cyberattacks, and espionage activities.
The program, which is covered by the FISA, or Foreign Intelligence Surveillance Act, gives US spy agencies broad authority to monitor and analyze communications of foreign nationals outside the United States.
If Congress does not agree to extend it, it will expire at the end of the year. Democratic administration officials are preparing for a brutal battle on Capitol Hill about reauthorizing the program as civil liberties advocates join Republicans in raising worries about the scope of the government’s spying authority.
Intelligence and national security officials sought to publicly argue on Tuesday that the statutory powers that are in danger of expiring have provided helpful information in recent years about ransomware attacks on crucial infrastructure, thwarted efforts to recruit spies, and helped to kill al-Qaida leader Ayman al-Zawahri in a drone strike last August.
The FISA clause, Section 702, which permits surveillance agencies to gather broad swathes of international communications, is in question.
Yet, because it results in the incidental acquisition of data from Americans when those Americans communicate with foreign surveillance targets, that technique has come under fire from civil rights advocates.
In 2008, Section 702 was first added to FISA, and it was extended for six more years in 2018. At the time, then-President Donald Trump, who frequently criticized government intelligence services, tweeted his initial objection to the program before changing his mind.
Republicans who are still upset about FBI mistakes made during the investigation into possible ties between Russia and Donald Trump’s 2016 campaign have positioned themselves as doubters of the need for the government to have broad spy powers and maintain that the authorities are ripe for abuse and overreach.
As a result, the fight for renewal this year is taking place in a polarized political environment.
The administration made a letter to lawmakers from Attorney General Merrick Garland and National Intelligence Director Avril Haines to convince Congress to continue the program and to show that they were ready to make any necessary changes to prevent abuses.
At a separate speech at the Brookings Institution think tank, Assistant Attorney General Matthew Olsen, the Justice Department’s top national security officer, echoed the same message.
According to a copy of his planned remarks, Olsen was scheduled to add, “The basic line is that Section 702 enables us the intelligence essential to stay one step ahead of our adversaries.” We can’t afford to let it expire. And waiting until the eleventh hour to take action would be detrimental to the interests of the United States and our allies and our fundamental safety.
National security authorities claim that Section 702 enables them to carry out their most important tasks, including gathering information on China and preventing ransomware attacks and other cyber intrusions that have damaged various businesses and government institutions.
Yet, they have opted against disclosing facts about how they deploy surveillance systems in public, claiming that they are classified.
Courts and legislators have examined the scheme in greater depth but behind closed doors. Key lawmakers have already heard from intelligence authorities on Section 702, and they will update House later this year in both classified and unclassified formats.
Garland and Haines write to Congress that “every court that has considered the bulk data program under Section 702 has found it to be constitutional.”
Also, the intelligence agency has never provided a specific estimate of the number of times its bulk data has been searched for information on Americans.
In its most recent transparency report, the Office of the Director of National Intelligence stated that the FBI conducted “fewer than 3,394,053” searches in 2021.
Along with civil liberties issues, there are concerns about whether the authority granted to U.S. intelligence after Sept. 11, 2001, terrorist attacks should be expanded as it essentially shifts from counterterrorism to what is known as “great power competition,” or Washington’s rivalries with Beijing and Moscow, as well as a variety of other threats like cyberattacks.
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