As the expiration date for the Feds’ Section 702 surveillance powers draws closer, FBI Director Christopher Wray has warned a US Senate committee that his agents may not be able to stop the next major cyberattack if lawmakers allow the contentious spying authorization to lapse.
“It would be absolutely devastating if the next time an adversary like Iran or China launches a major cyberattack, we don’t see it coming because 702, one of our most important tools, was allowed to lapse,” Wray told the Committee on Homeland Security and Governmental Affairs.
Wray has previously said that 97 percent of the FBI’s technical intelligence on malicious “cyber actors” in the first half of this year was obtained via Section 702 searches.
“Or with everything going on in the world, imagine if a foreign terrorist overseas directs an operative to carry out an attack in our own backyard, but we’re not able to disrupt it because the FBI’s authorities have been so watered down,” he said Tuesday.
Section 702 of America’s Foreign Intelligence Surveillance Act (FISA) allows American intelligence agencies to monitor foreigners’ electronic communications outside of America. However, if these emails, texts, and phone calls are with or about US persons, those people’s data can get caught in the dragnet, as well as people who those US persons also talk to.
And while it’s supposed to be used to fight crime and prevent terrorist attacks, it has also been abused by the FBI to conduct warrantless surveillance on US citizens including protesters, campaign donors, and elected officials.
The contentious rule is set to sunset at the end of 2023 unless lawmakers renew — or reform — the FISA amendment. Meanwhile Wray and the rest of the intelligence community have been lobbying politicians to keep the snooping powers intact and renew Section 702, as it stands, before the year’s end.
Why the FBI ignores the reform option
“The most important component of Wray’s comments is whether the FBI can reasonably object to proposed reforms to 702,” said Jake Laperruque, deputy director of the Center for Democracy and Technology’s (CDT) Security and Surveillance Project.
“The framing in his statement to the committee is the same broken record we’ve heard from the intelligence community all year of framing the debate as ‘no change versus sunset,’ and trying to dodge the basic question of whether 702’s value would be impeded by key reforms civil rights and civil liberties groups are calling for,” Laperruque told The Register.
… the same broken record we’ve heard from the intelligence community all year
CDT, the American Civil Liberties Union (ACLU), and the Electronic Frontier Foundation are among the groups calling for reform, and in some of their proposals they’re joined by lawmakers on both sides of the political aisle.
In September, a privacy panel within the US government recommended that Congress reauthorize Section 702 spying powers albeit with some stronger protections for US persons.
These include requiring FISA court approval for US person queries — essentially taking away the federal agencies’ abilities to run warrantless Section 702 queries on Americans and permanent residents to hunt for evidence of a purported crime. The proposed changes include limiting the scope of permissible targeting, strengthening the role of FISA Court amici, and outlawing so-called “about” collections that allow much more surveillance than would normally be the case.
New US House leadership
There’s another new wrinkle in the intel community’s case for unfettered Section 702 powers: the new Speaker of the US House of Representatives, Mike Johnson, a Republican from Louisiana, has previously criticized the FBI for abusing the spying legislation [PDF].
“We are still trying to ascertain where exactly the new speaker is going to be on 702, but I do think it’s somewhat notable that he didn’t include 702 in his letter with his list of priorities for the rest of the year,” Kia Hamadanchy, senior policy counsel for the ACLU, told The Register.
Hamadanchy said Wray’s most recent comments are just the most recent example of how the “administration is trying every angle they can to try and win over members who are deeply skeptical about Section 702.”
The White House, over the summer, weighed in on the debate, urging lawmakers to reauthorize Section 702 “without new and operationally damaging restrictions.” Letting the law expire would be “one of the worst intelligence failures of our time,” according to the Biden administration.
“They are engaging in a false dichotomy as the question is not whether we end 702 or leave it as it is,” Hamadanchy said. “It’s whether requiring a warrant for US person queries and other reforms would undermine the value. And they have not made that case.”
Laperruque also questioned Wray’s objection to the proposed warrant rule, which is one of the Section 702 reforms that has support among both Republicans and Democrats in Congress.
“Wray’s objection in his written testimony [PDF] that a warrant rule for US person queries ‘would amount to a de facto ban’ is hyperbole, and the type of easily debunked comment that shows how out of touch the FBI is on this important issue,” Laperruque said. “It’s simply ludicrous to claim the FBI could never obtain probable cause that queries will return evidence of a crime for the 200,000-plus queries it conducts each year.”
“We are nearing the sunset, and I think it’s long past time for the administration to come to terms with where Congress is, and accept the reality that Republicans and Democrats alike aren’t going to pass a bill without major reforms,” he continued.
“If there’s risk of 702 expiring, it’s because the White House and intelligence communities haven’t been willing to come to the table and acknowledge that the litany of abuse of 702 means there will need to be serious changes.” ®