A normally low-profile watchdog agency charged with investigating US national security programs has fractured into a bitter public dispute over proposed reforms to a controversial law that allows warrantless surveillance of foreigners but also sweeps up the communications of American citizens.
The law, known as Section 702 of the Foreign Intelligence Surveillance Act, is set to expire at the end of the year and Congress is set to vote on whether to reauthorize it. The five-member Privacy and Civil Liberties Board on Thursday issued a roughly 300-page report proposing a series of new limits on how federal authorities can use the program. But the board split along partisan lines, with three Democrats voting to release the document and two Republicans issuing their own proposed reforms in annex to the report.
Both sides agree that the program is vital to national security and should be renewed. But debate has flared over what reforms should be put in place to improve protections for Americans’ privacy and civil liberties.
The report is nonbinding – the responsibility to renew or modify the program ultimately lies with Congress – but the panel is a powerful voice on the issue.
“It is, in essence, two reports: A three-member report and a two-member report,” a senior administration official told reporters on Wednesday. “The fact that there’s such division … makes it hard for the hill to know what exactly to do with two competing reports.”
The law as it stands is designed to allow the US intelligence community to collect the communications records of foreign persons based overseas, but it also allows the FBI to search the data it collects for Americans’ information in what critics have called a “backdoor” search.
Democrats on the panel have proposed that intelligence and law enforcement officials should have to receive approval from a federal intelligence court, the Foreign Intelligence Surveillance Court, any time they want to query the 702 database for information on US citizens. To receive approval, the queries must be “reasonably likely” to turn up foreign intelligence information or evidence of a crime. The panel’s Democratic chairwoman, Sharon Bradford Franklin, wants queries to have to meet an even stronger “probable cause” standard to be approved, according to the report.
But the panel’s Republicans, Beth Williams and Richard DiZinno, blasted that proposal as “unmoored from any legal justification,” arguing that it will “make it substantially more difficult to detect and thwart hostile foreign action, including acts of terror, against the United States” without providing any meaningful additional protection to the privacy of American citizens.
The Biden administration has also pushed back against such a requirement, in some ways placing the administration closer to the panel’s Republicans than its Democrats.
The senior administration official called the proposed requirement “the worst of all worlds,” warning that it could cause dangerous delays in national security investigations. The executive branch would possess the information lawfully, have searched it lawfully and would know that its search had returned meaningful results – but wouldn’t be able to review the content of the search results without the FISC’s approval.
The US, the official said, would be “sitting on what we know to be responsive national security information.”
Biden administration officials since last year have been publicly and privately lobbying Congress on the importance of Section 702 and pushing for as few changes as possible.
Twice since the law was initially passed in 2008, privacy and civil liberties advocates have fought for reforms, only to see Congress pass a clean reauthorization in the face of fierce insistence from multiple administrations that it is an irreplaceable tool that allows them to preempt terrorism plots, quickly assist the victims of ransomware attacks and more.
But since the last reauthorization in 2018, the politics surrounding the authority have been scrambled. Section 702 has become the bugbear of conservative Republicans after the revelations that a different section of the same law was inappropriately used to surveil Trump campaign aide Carter Page. A series of other public revelations about compliance issues within the FBI – as well as the raid on former President Donald Trump’s Mar-a-Lago resort – has contributed to an intense Republican distrust of the US intelligence community that the former president has stoked for years in public remarks.
The two Republican members of the panel emphasize in their annex to the overall report that “the evidence clearly shows that what has most worried Americans for decades about government surveillance programs – the improper collection of U.S. person data – is not occurring under the Section 702 program.”
But they nevertheless recommend that Congress should be able to review queries of the database that involve public officials, political candidates, and members of the press “on a regular basis.”
“The best branch to safeguard against political misuse is a political branch accountable to the people – not a court with limited resources, appropriately focused only on legal issues, and operating largely out of the public eye,” the Republicans’ annex reads.
They also recommend stiffer requirements for requests to “unmask” US persons whose names appear blacked out in 702 queries – a practice that Republicans say was weaponized against Trump campaign officials – and the creation of a new criminal statute to penalize those who leak 702 information about Americans.
Key aides and lawmakers who broadly support retaining the authority – particularly national security-minded lawmakers on the House and Senate Judiciary and Intelligence Committees – have been discussing for months what reforms might be palatable to powerful critics of the law while still preserving the FBI’s ability to do its job.
But at this early stage, there is little consensus around what those reforms might be, according to both House and Senate aides working on the issue. It’s possible that the overall package might have to include reforms beyond just the narrow authority in question to cover a host of other surveillance and classification-related concerns.
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