Biden Admin Seeking Reauthorization for FISA Warrantless Surveillance of Foreigners

The Biden administration wants to reauthorize a key legal passage allowing US intelligence agencies to spy on foreigners without seeking a warrant - even when they interact with Americans.

"The Biden-Harris Administration strongly supports the reauthorization by Congress of Section 702 of the Foreign Intelligence Surveillance Act (FISA), a vital intelligence collection authority, which the Attorney General and the Director of National Intelligence conveyed today in a joint letter to congressional leadership," White House national security advisor Jake Sullivan said in a release on Tuesday.

Sullivan called Section 702 “a cornerstone of US national security” and “an invaluable tool that continues to protect Americans every day and is crucial to ensuring that US defense, intelligence, and law enforcement agencies can respond to threats from the People’s Republic of China, Russia, nefarious cyber actors, terrorists, and those who seek to harm our critical infrastructure."

Congress passed FISA in 1978 in the wake of the Church Committee and other investigations that had revealed the essentially unchecked behavior of US intelligence services since the 1940s, including especially the CIA. The law was intended to systematize and legalize surveillance processes by forcing them through a secretive Foreign Intelligence Surveillance Court (FISC).

Section 702 was created in 2008 as part of a broader expansion of FISA, and allowed the National Security Agency (NSA) to conduct searches of foreigners' communications without a warrant. It “incidentally” also surveils Americans with whom those foreigners interact, according to US intel agencies.

However, the 2008 law requires regular reauthorization, and it will expire at the end of 2023 unless Congress votes to reauthorize it.

Abuse of FISC and of Section 702 has long been exposed by whistleblowers, but so have US intelligence reports themselves. One report by the Office of the Director of National Intelligence (ODNI) published in April 2022 showed extensive evidence of the FBI searching through data acquired under the act without first seeking FISC authorization, which must accompany a search for explicit information.

According to the report, the FBI queried Section 702 data an estimated 3.39 million times between December 1, 2020, and November 30, 2021. It noted that the FBI had previously been found to be abusing the FISA process in 2018.

“The fact that Section 702 surveillance regularly results in the collection and search of innocent Americans’ communications is an intended and inherent part of the system,” the Electronic Frontier Foundation, a pro-privacy group, said in a blog post. “That means the government casts a spying net that routinely catches the communications of law-abiding Americans, who are protected by the Fourth Amendment’s privacy protections.”

Republicans have strongly objected to Section 702, noting that the FBI abused the FISC as part of the Russiagate investigation in which Democrats and pro-Hillary Clinton parts of the state claimed that Donald Trump’s 2016 presidential campaign was aided by the Russian government. With the GOP in control of the US House of Representatives, reauthorizing Section 702 will be easier said than done.

Ahead of the impending battle, DNI Avril Haines and Attorney General Merrick Garland sent a joint letter to Congress arguing for its renewal, and other top Justice Department officials have made similar appeals to the major conservative think tanks.