Government funding bill punts extension of controversial spying power

A government funding package released early Thursday doesn't extend or make changes to a controversial spying authority that gives spy agencies wide latitude to collect communications on foreign targets for use in national security and terrorism investigations, setting up a race for lawmakers who want to extend or reform the tool before it expires on April 19.

Intelligence agencies deem the authority under Section 702 of the Foreign Intelligence Surveillance Act vital for keeping Americans safe. But the measure also allows for collection of communications by individuals covered by Fourth Amendment protections against unreasonable searches and seizures. Many critics of the current use of the authority want to introduce a warrant requirement governing access to 702 data.

Senate Judiciary Committee lawmakers unveiled a bipartisan measure last week that would require a warrant for law enforcement to obtain the contents of 702 communications involving  U.S. persons, although the legislation does not require a warrant for law enforcement to run queries. 

Officials including FBI Director Christopher Wray contend that a warrant requirement would gut the effectiveness of the tool, arguing that 702 has a significant timing factor and waiting for search authorization would prevent the U.S. from staying ahead of terror threats.

“We’re talking about terrorism looming at the speed of social media, cyber attacks that have to be resolved in hours. Time matters and that’s where 702 is most useful,” he said at a recent Intelligence and National Security Alliance event.

Details on the use of 702 data is mostly classified, though the intelligence community has said publicly that President Joe Biden’s daily briefings are heavily derived from 702 sweeps. Officials have also said that 702 has been crucial in going after hackers linked to foreign adversaries like China and Russia.

The Biden administration filed an extension request for the tool in the Foreign Intelligence Surveillance Court this month, a move that upset privacy advocates who said that seeking a court-ordered extension prior to the deadline was cynical and disrespectful of Congress.

Noted privacy hawk Sen. Ron Wyden, D-Ore., called the move “utterly ridiculous” and said the Biden administration and DOJ “would rather risk the long-term future of an important surveillance authority than support a single meaningful reform to protect Americans’ rights.”

Wyden sits on the Senate Intelligence Committee and has argued for commonsense reforms to 702. But other colleagues like Sen. Mark Warner, D-Va., who chairs the panel, said that the White House would need to seek legal authorization for renewal regardless of whether it is set to expire.

“That is just factually not correct,” Warner told Nextgov/FCW on the sidelines of a recent Professional Services Council event when asked whether the administration was circumventing Congress when it sought the extension.

“Every year, whether the FISA is reauthorized or not, the government has to go back and get what in effect is a clearance to continue the existing cases. They will be doing this whether it was a deadline on April 19 or not,” he added.