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Ahead of an expiration date at the end of the year, the Biden administration formally requested on Tuesday that Congress reauthorize Title VII of the Foreign Intelligence Surveillance Act (FISA), a controversial spy program used to combat threats around the world.
Attorney General Merrick Garland and Director of National Intelligence Avril Haines sent a letter to congressional leaders arguing that maintaining Title VII is a “top legislative priority” for the Biden administration. The letter places particular emphasis on Section 702, which was enacted in 2008 and is used to monitor non-U.S. citizens abroad, but Title VII also contains other sections that concern procedures and protections for surveillance of U.S. persons abroad.
Garland and Haines argue Section 702 has been critical in identifying and protecting against national security threats to the United States and its allies, including “conventional and cyber threats” posed by China, Russia, Iran, and North Korea.
They listed some examples touting Section 702’s usefulness, including noting that it contributed to the operation that led to a CIA drone strike in Afghanistan killing Al Qaeda leader Ayman Al-Zawahiri in 2022.
“Section 702 has proven a cornerstone of U.S. national security,” said National Security Advisor Jake Sullivan in a statement from the White House. “This authority is an invaluable tool that continues to protect Americans every day and is crucial to ensuring that U.S. defense, intelligence, and law enforcement agencies can respond to threats from the People’s Republic of China, Russia, nefarious cyber actors, terrorists, and those who seek to harm our critical infrastructure.”
Privacy and civil liberty advocates have raised concerns about warrantless surveillance due to the mass incidental collection of data, including the communications of Americans in contact with a foreign target, and the mishandling of surveillance powers, such as the FBI’s targeting of a Trump 2016 campaign aide using an unverified dossier.
Some lawmakers on both sides of the aisle have already signaled opposition to FISA as it stands. Among them are Rep. Pramila Jayapal (D-WA), who this month called for “meaningful reforms” to protect Fourth Amendment rights, and Rep. Andy Biggs (R-AZ), who sent a letter to FBI Director Christopher Wray two weeks ago demanding answers about “backdoor searches” sifting through FISA data that appear to have targeted politicians.
“My colleagues and I in Congress are currently weighing whether FISA 702 authorities should be reauthorized beyond December 31, 2023,” Biggs said. “Unless we receive prompt and thorough responses from Director Wray, we cannot proceed forward with that process.”
Members of Congress will have a chance to grill the Biden administration about the FISA program, as Garland and Haines are set to appear before key committees in the coming days.
In their letter, Garland and Haines said the intelligence community and Justice Department “are committed to engaging with Congress on potential improvements to the authority that fully preserve its efficacy.”