Senate Democrats see roadblocks to 702 reauthorization without reforms

Senate Democrats are stressing their unwillingness to reauthorize a law that allows for warrantless surveillance of foreign nationals without significant reforms — aligning themselves with many of their Republican colleagues in the House.

Section 702 of the Foreign Intelligence Surveillance Act is set to expire at the end of the year, but lawmakers have expressed hesitance about renewing it without assurances the intelligence community can curb practices that sweep up information on U.S. citizens communicating with those abroad.

“I will only support the reauthorization of Section 702 if there are significant – significant – reforms. And that means, first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment,” Senate Judiciary Committee Chair Dick Durbin (D-Ill.) said as a suite of national security officials appeared before the panel to push for its reauthorization.

“It was my view when this program was first authorized by Congress in 2008 – and it is my view now – that Section 702 does not sufficiently protect the privacy and civil liberties of Americans.”

Numerous lawmakers have expressed concern about reauthorizing the law, including House Democrats, but some of the loudest voices opposing reauthorization this year have come from right-leaning GOP members of the House.  

Officials from five agencies appeared before the panel eager to make a case for the reauthorization of what they call a critical authority. But the bulk of the defense was left to Matt Olsen, assistant attorney general of the National Security Division at the Justice Department. 

“The reauthorization of 702 is perhaps the single most consequential national security decision that this Congress will make. The stakes could not be higher,” Olsen told lawmakers.

Olsen noted complaints about the FBI’s use of the data.

In 2022 the FBI spied on more than 246,000 foreign nationals using the tool, but their queries swept up information on 119,000 Americans.

Some reports indicate that information has been improperly used, including in cases pertaining to the Jan. 6, 2021, insurrection and 2020 racial justice protests, a court order detailed last month.

“These compliance problems are not acceptable. They have eroded public trust, and I’m not here to defend them. Indeed, when we identified these problems, the attorney general directed the FBI to make significant changes to their systems and their policies, and their training – changes that have already proven effective in improving compliance,” he said.

“But this is an ongoing process.” 

The FBI sought to head off concerns from lawmakers with the release of new FBI FISA Query Accountability Procedures, increasing the performance consequences for improperly using powers under Section 702.

But many expressed an interest in having more oversight over the entire process, including requiring authorities to secure a warrant for searches that involve U.S. citizens – an idea Olsen said his office strongly opposes.

Sen. Mazie Hirono (D-Hawaii) responded by saying the department “opposes our reform because you argued that many of the queries are done before the FBI has probable cause, which says to me that if you had to meet a probable cause requirement that would already decrease the number of applications.”

Numerous voices have called for the change, including a coalition of civil rights activists who argued that a provision requiring a warrant in limited cases involving American citizens is largely being ignored.

But the intelligence community has called the practice unworkable.

“First, every judge that’s looked at this issue, every federal judge, including judges on the FISA court have concluded that a warrant is not required under the Fourth Amendment for searching the lawfully collected data that is in the FBI holding,” Olsen said.

“The sheer number of search requests would simply overwhelm the system, there’s no number of FISA court judges or even magistrates, who would have clearances for example, who could possibly manage the number of queries. So it’s both not legally required and it’s not workable. And it wouldn’t protect us.”

Olsen also pushed back on an idea being considered by a House working group that would establish a civil rights representative within the process who fight to protect civil rights within FISA courts, something Sen. Richard Blumenthal (D-Conn.) deemed “an adversarial process [that] would provide a lot of reassurance, I think, to this committee and the American people.”

“The vast majority of FISA applications are basically facts against the probable cause standard,” Olsen said. 

“They don’t involve novel interpretations of the law. And they are done with a degree of urgency multiple times a week that does not lend itself to the sort of adversarial back and forth process that an amicus would introduce, and so there’s some serious risk to having, for example, an amicus in every case.”