Sen. Mark Warner, D-Va.

Sen. Mark Warner, D-Va. Anna Moneymaker / Getty Images

Intel leaders, White House argue for keeping digital spy powers

Agencies have less than six months to convince a divided Congress to re-up an expiring warrantless surveillance authority.

The controversial law used to digitally spy on foreigners in other countries is widely misunderstood, according to lawmakers and others who want to re-up the expiring legislation. The problem, they say, is that the information that could convince skeptics is largely classified. 

“We desperately need to get 702 reauthorized,” Sen. Mark Warner, who chairs the Senate Select Committee on Intelligence, said Wednesday during the confirmation hearing for the next head of the National Security Agency. “We have not done a very good job, the [intelligence community] and the FBI and the administration, in making clear that the 702 we're talking about today is very different than the 702 that was reauthorized back in 2018,” he said, referencing reforms the FBI made to how it uses the database after the FISA court uncovered abuses that including “broad, suspicionless” queries.

Section 702 of the Foreign Intelligence Surveillance Act allows intelligence agencies to spy on foreigners that are not located in the U.S., but who use its infrastructure. The tool, a queryable database that can be accessed without a warrant, is used to prepare the president’s daily brief and has also been flagged for inadvertently collecting Americans’ data. Authority to use it is set to expire in December.

It’s a divisive law and practice. Intelligence leaders and some members of Congress support the reauthorization, while other lawmakers align with civil liberties groups that worry the law—even with reforms—infringes on Americans’ privacy. House members have been pushing for more reforms since earlier this year.

Jonathan Finer, the White House’s principal deputy national security advisor, said the administration is “prepared” to make changes to 702 that strengthen privacy and oversight, while keeping the tool viable. 

“We are prepared to be responsive to what many members of Congress have called for and many people in our own administration strongly support, which is enhancements to oversight and privacy protections under Section 702,” Finer said Friday during a keynote at the Intelligence and National Security Summit. 

“We're in close dialogue with Congress about a number of steps that we have already taken that we'd be willing to codify and about a number of additional steps that we would look at and building into reauthorization as it comes up for consideration by Congress later this year.”

Finer said the information intelligence agencies collect, including through 702, is directly connected to the United States’ ability to warn allies and partners.

"Our ability to warn is only as good as our collection and our insights," he said. "Section 702 has helped us uncover gruesome atrocities committed by Russia in Ukraine, including the murder of non-combatants, the forced relocation of children, and the detention of refugees fleeing violence. And we remain in dialogue with Congress on a series of unprecedented improvements."

But there’s still the issue of educating members with examples that aren’t publicly releasable. 

The director of national intelligence declassified a report that detailed how the IC uses commercially available data to help make a case for reauthorizing the law.

Sen. John Cornyn, R-Texas, said during the intelligence committee hearing, “Part of the conundrum in trying to convince the American people, much less members of Congress, about these authorities is a lot of the information that would demonstrate the necessity of that is classified information by its nature.

“But I think we've got a very heavy lift on our hands and, frankly, it's going to start with the House of Representatives. We're going to have to make some changes with the FBI's authority, particularly when it—as regards to US citizens and US persons when they use lawfully collected 702 information for law enforcement purposes.”

The House intelligence committee launched a bipartisan focus group to investigate 702 abuses in March. (There’s also a push in the House to limit how the intelligence community uses data brokers.)

But part of the challenge, intelligence leaders say, is conveying extremely complicated information about 702 to lawmakers and the general public. 

Employing 702 is “extremely technical” and must “evolve with the state of technologies that we're interacting with,” said George Barnes, the NSA’s deputy director, during a panel at the Intelligence and National Security Summit on Thursday. But it’s also the IC’s job to “demystify” the processes, procedures, and how connections are made. 

David Cohen, the deputy director for the Central Intelligence Agency, called 702 “valuable in the full suite of national security issues that we spend our time working on,” adding that the authority helps identify foreign actors and U.S. victims of cyberattacks, as well as supply routes for chemicals used to make fentanyl. For the latter, he said, the current version of 702 is needed to “effectively address that.”

Still, some lawmakers are worried about weakened privacy protections for Americans. Sen. Ron Wyden, D-Oregon, pointedly asked Lt. Gen. Timothy Haugh, the president’s nominee to lead the NSA and U.S. Cyber Command, whether he would install “backdoors” into encryption tools should he be confirmed. 

Haugh vowed not to, because encryption is “critical to defend our national security systems and our weapons systems. If confirmed, we will not weaken encryption for Americans.”

Lawmakers have proposed implementing a probable cause standard, or requiring agencies to get a warrant before using 702. But Paul Abbate, the FBI’s deputy director, said that would make it useless. 

“It's not legally required—and that's been stated by the FISA court, and other courts as well,” Abbate said Thursday during the conference. “But, importantly beyond that, if we had to get a warrant, each and every instance, the delay that that would cause would essentially…undermine the effectiveness of the tool, the query, itself.”