The future of a controversial surveillance program is in jeopardy as lawmakers debate its renewal amid increasing skepticism of the American intelligence community.
Debate in Congress has continued on the renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA) before it expires at the end of the year, which allows intelligence agencies to obtain the online communications of foreign nationals without a warrant. Critics have raised concerns that lack of oversight of the program also allows the communications of American citizens to be obtained without a warrant or due process.
“Section 702 has kept American citizens safe and our U.S. service members abroad out of danger,” said Rep. Mike Turner (R-OH), the chairman of the House Intelligence Committee, in a statement to the Associated Press. “However, changes must be made in order to prevent further FBI misuse and abuse of this vital national security tool.”
Section 702, first implemented in 2008, was renewed by then-President Donald Trump in 2018 even after he said the power was linked to the widely discredited Steele Dossier that purported to have evidence of collusion between Russia and the Trump campaign. After initial skepticism, Trump renewed the powers following a discussion with then-House Speaker Paul Ryan (R-WI).
During a hearing on Thursday by the House Judiciary Subcommittee on Crime and Federal Government Surveillance, Rep. Matt Gaetz (R-FL) asked a panel of witnesses, including Department of Justice Inspector General Michael Horowitz and two panelists from the U.S. Privacy and Civil Liberties Board, about how many federal government employees had access to FISA data.
“If I represent to you that we believe there may be north of 10,000 people in the federal government who can perform [FISA] queries, would anyone here have a basis to disagree with that?” Gaetz asked. The panelists all said no.
Upwards of 10,000 FBI personnel may have access to section 702-acquired FISA data.
10,000!
Why's that number so big?
🎥 : @RepMattGaetz pic.twitter.com/tKyeot0KQy
— House Judiciary GOP (@JudiciaryGOP) April 27, 2023
In his prepared statement to the committee, Horowitz noted that the FBI’s Crossfire Hurricane investigation’s use of FISA to go after Donald Trump aide Carter Page, which was supposed to look into alleged collusion between Trump and Russia, was deeply flawed.
“We identified multiple instances in which factual assertions relied upon by the FISC in the FISA applications were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the applications were filed,” he said.
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Rep. Andy Biggs (R-AZ) said on Thursday that he believed that Section 702 was “already beyond repair.”
“FISA section 702 explicitly states that it may only be used to target non-U.S. persons located abroad for the purpose of obtaining foreign intelligence information,” Biggs said. “But it’s clear that the government has used communications acquired through this program to conduct backdoor searches of Americans’ communications.”
Several Democrats, including Rep. Jerry Nadler and Pramila Jayapal, have also expressed skepticism about the renewal of Section 702.
Last month, FBI Director Christopher Wray acknowledged that the bureau had made mistakes during its investigations. “Like any major institution, we have made mistakes,” he said. “To me, the mark of a leading organization is not whether it makes mistakes or not … but whether or not we learn from those mistakes. And I think we have.”
Without any action from Congress, the surveillance program will expire at the end of the year.