The U.S. Government’s Most Powerful Spying Tool Is Fighting for Its Life

The FBI’s headquarters in Washington, D.C. The agency has tried to address concerns raised by previous abuses of the surveillance program. PHOTO: TING SHEN FOR THE WALL STREET JOURNAL
The FBI’s headquarters in Washington, D.C. The agency has tried to address concerns raised by previous abuses of the surveillance program. PHOTO: TING SHEN FOR THE WALL STREET JOURNAL

Summary

The Biden administration’s efforts to renew legislation that allows the U.S. to track the electronic communications of terrorists, spies and hackers overseas face increasing opposition.

WASHINGTON—The Biden administration’s efforts to renew legislation that allows the U.S. to track the electronic communications of terrorists, spies and hackers overseas is facing an uphill battle amid increasing opposition from some members of both political parties and a looming end-of-year deadline.

For years, privacy advocates have criticized the law, but Congress renewed the legislation twice with broad bipartisan support. Fifteen years after it was first passed, a tool designed to track threats abroad has been caught up in domestic political controversies at home and is on the verge of dying—or being sharply curtailed—even as the U.S. faces renewed concerns about terrorism in the Middle East.

Section 702 of the Foreign Intelligence Surveillance Act is among the most powerful tools wielded by U.S. spy agencies. Information collected by it contributes to more than half of the intelligence briefed daily to the president. But because of how it warrantlessly gathers communications data from Americans, it has long pitted privacy advocates who have decried the potential for abuse against a national security establishment concerned with preventing calamitous attacks, such as the next 9/11.

Now, however, the legislation is ensnared in an increasingly polarized political environment that has seen once-bedrock support from the Republican party splinter, with some GOP lawmakers eager to see it reformed, or even die, and Democrats split on how to salvage it.

Congressional leadership has tucked a short-term extension of the spying power into a must-pass annual defense authorization bill that lawmakers will vote on as soon as next week. Assuming the bill passes, it puts Section 702 on life support until April, when lawmakers will have to decide how—or whether—to renew it long term.

The Federal Bureau of Investigation has acknowledged past abuses involving data collected under Section 702, such as its use to spy on domestic political protests. But the legislation has also attracted the scorn of some Republicans who have grown increasingly suspicious of U.S. government surveillance after the investigation of former President Donald Trump’s 2016 political campaign over potential ties to Russia.

“We have absolutely no reason to trust you," Sen. Mike Lee (R., Utah), told FBI Director Chris Wray this week during a Senate hearing. Efforts by the FBI to proactively address concerns raised due to previous abuses weren’t enough, Lee said, because new scandals always seemed to surface. “It’s never different. You haven’t changed."

Part of the challenge has been national-security officials’ insistence that data collected under Section 702 is vital to national security, but their refusal to release details because of secrecy around the program. In a letter sent to Congress on Monday, senior law-enforcement and intelligence officials said Section 702 “is vital for insights into foreign terrorist organizations, including Hamas."

While the letter cited historic examples of terrorist plots that Section 702 helped prevent, it gave no specifics related to the current conflict.

The question now is whether the Biden administration can overcome increasing suspicions among these Republicans and the concerns of more traditional privacy advocates to get the law renewed before it expires. If it doesn’t succeed, then the U.S. government will be committing what the President’s Intelligence Advisory Board recently said would be “one of the worst intelligence failures of our time."

The Foreign Intelligence Surveillance Act, which was enacted into law after post-Watergate abuses were unearthed, expanded in the years after Sept. 11, 2001. The 2008 addition of Section 702 was supposed to put the expanded surveillance on a firmer legal footing.

The law allows the National Security Agency to collect communications of foreigners living overseas from U.S. companies such as Alphabet’s Google, Meta Platforms, Microsoft and Apple, as well as from telecommunications firms.

But the global nature of digital traffic means the program also collects an unknown amount of texts, calls, emails and other digital content belonging to Americans. The U.S. government can then search that U.S. data about national security threats and, in rare cases, evidence of a crime.

Privacy advocates have generally acknowledged the program’s value but said it needs more protections to prevent intrusions into Americans’ private data. “It is possible to confront our country’s adversaries ferociously without throwing our constitutional rights in the trash can," Sen. Ron Wyden (D., Ore.), a leading critic of the program, said.

While liberal Democrats long harbored misgivings about the tool, law-and-order Republicans typically embraced it. That changed under Trump, whose deep grievances against the FBI and U.S. national-security agencies continue to shape the Republican Party’s politics, including around surveillance issues.

During his time in office and since he left, Trump repeatedly has accused the FBI and other agencies of a raft of abuses, including trying to spy on his 2016 presidential campaign. Those allegations were turbocharged with the findings of a Justice Department inspector general that the FBI had inappropriately approved surveillance on a onetime Trump campaign adviser.

That case didn’t involve the Section 702 authority and instead relied on a more traditional FISA warrant that allows for specific targeting of an individual. Still, it fueled distrust among Republicans of government surveillance.

The previous renewal, in 2018, narrowly cleared the Senate’s 60-vote filibuster threshold after Trump first attacked Section 702 but then relented after his chief of staff, John Kelly, implored the president to reverse course.

During this renewal debate, intelligence officials have sought to demonstrate the value of Section 702 by declassifying selected examples of its utility, such as its contribution to an operation last year that killed al Qaeda leader Ayman al-Zawahiri.

For the past year, the Biden administration has lobbied traditional privacy advocates—many of them Democrats—concerned by the law’s warrantless collection of data belonging to Americans while seeking to temper passions from a conservative faction of Republicans with grievances against U.S. law-enforcement and intelligence agencies.

In public testimony, Avril Haines, President Biden’s top intelligence official, has said that the spying authority is critical to identifying terrorist threats, thwarting cyberattacks and even preventing the spread of weapons of mass destruction. It provides unique foreign intelligence “at a speed and reliability that we just simply cannot replicate in any other authority," she said in May.

She has also lobbied lawmakers and privacy groups privately. Following the midterm elections last year, shortly before the GOP took control of the House, Haines met privately with top Democrat and Republican lawmakers to ask them to use the lame-duck period to reauthorize Section 702, according to people familiar with the meeting. Her overture was unsuccessful.

The administration’s renewal push, meanwhile, has been repeatedly buffeted by new revelations about how the program has been misused, chiefly by analysts at the FBI. In May, a declassified opinion from the FISA Court, which oversees the use of Section 702, disclosed that the FBI had wrongfully used the database to search for information on George Floyd protesters and Jan. 6 rioters.

A number of Republicans and Democrats in Congress want to codify changes the FBI has already enacted to curb abuses, but large groups in both parties are seeking more substantial overhauls.

Bipartisan legislation introduced last month in the Senate and House by a range of privacy advocates led by Wyden would renew Section 702 for four years but enact sharp new guardrails, such as requiring U.S. agencies, including the FBI, to obtain judicial approval before conducting content searches related to Americans.

Separate legislation newly introduced by the leaders of the Senate Intelligence Committee, Sens. Mark Warner (D., Va.) and Marco Rubio (R., Fla.), and several other senators would seek more moderate changes to the FBI’s access to Section 702 and not create a generalized warrant requirement.

The House appears even less certain of a path forward with dueling bipartisan bills that would respectively either preserve the FBI’s warrantless access to U.S. data or essentially eliminate it.

FBI Director Wray has pleaded with lawmakers throughout the year to not restrict the FBI from being able to search U.S. data swept up in the program. In Senate testimony this week, he described Section 702 as indispensable to combating foreign threats to the U.S.

“Stripping the FBI of its 702 authorities," he said, “would be a form of unilateral disarmament."

Write to Dustin Volz at dustin.volz@wsj.com

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