Biden administration moves to renew FBI spy tool while bill is stalled in Congress

The Department of Justice is planning to begin its annual process of renewing a powerful surveillance program that Congress has vowed to reform after revelations surfaced in recent years that the FBI has abused its access to it.

Matthew Olsen, assistant attorney general for national security, said in a statement the DOJ is “taking the steps necessary” on its end to obtain certifications for Section 702 of the Foreign Intelligence Surveillance Act. Critics warn this could give the government full access to the program in its current state, without congressional reforms, until April 2025. The current certifications expire in April.

Section 702 allows the intelligence community to surveil foreigners without a warrant for national security purposes, but U.S. citizens who have been communicating with overseas targets can have their private information swept up in the collected data.

Concerns about Section 702, and government spy powers in general, have been a source of controversy in recent years after the DOJ inspector general found in 2019 that the FBI submitted multiple misleading surveillance applications to the FISA court to establish probable cause so that it could spy on then-Trump campaign aide Carter Page.

The high-profile violations generated worries about surveillance abuse, though they occurred through a different provision of FISA than Section 702. But Section 702 itself has also been fraught with abuse. The FBI, specifically, was found in recent years by the FISA court to have inappropriately queried the vast database of Section 702-derived foreign intelligence for information about U.S. citizens hundreds of thousands of times. The bureau garnered, for instance, private information about U.S. campaign donors and people involved in the George Floyd protests and the Jan. 6 Capitol breach.

FBI Director Christopher Wray has emphasized that the bureau began making internal reforms in the summer of 2021, resulting in what the FISA court has said is a drastic reduction in the FBI’s noncompliance rate with using Section 702.

Still, congressional lawmakers, who are responsible for reauthorizing Section 702, have been vocal about their desire to codify various new reforms into law. They, however, remain in a stalemate over how to do that.

Regardless of what happens with reauthorizing the law, the mere DOJ certifications could give the FBI access to the surveillance tool through next year — without the guardrails that lawmakers have been calling for. The DOJ has said, however, that it would face a barrage of legal hurdles and national security would be jeopardized if Congress does not do its part to reauthorize the statute this year, whether with reforms or without.

The DOJ aims to include the FBI’s internal reforms as part of its recertification process, and that process would begin in March, Olsen said. Any congressional reforms would be included when and if Congress passes them, he said.

“Once Congress reauthorizes Section 702, we commit to incorporating any additional statutory reforms Congress enacts on an expedited timeline and to returning to the court to seek early recertification,” Olsen noted.

James Czerniawski, a senior policy analyst at Americans for Prosperity, criticized the DOJ for seeking a yearlong Section 702 renewal out of concern that the department would be able to use the program in its current state through April 2025 while congressional proposals remain in limbo.

“We warned of this exact outcome when a clean short term reauthorization of Section 702 of FISA was included in the NDAA [in December 2023],” Czerniawski said in a statement. “This entirely predictable action by the government shows what little regard they have for the role of Congress in this conversation. Asking for a year long extension from FISC on such a controversial program that Congress hasn’t had a meaningful vote on is simply unacceptable.”

House Intelligence Committee ranking member Jim Himes (D-CT) said in a statement that he too expected the DOJ to seek Section 702 renewal but noted that the department was legally obliged to do that.

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“It’s what the law requires, and DOJ would be derelict in its duty if it didn’t move forward to ensure there is no gap in this critical capability which the IC uses every day to keep Americans safe,” Himes said. “None of that changes the urgent need for Congress to act on a long-term reauthorization that puts in place important reforms without undercutting the value of 702. That remains my focus.”

The chairman of the committee, Rep. Mike Turner (R-OH), has been on the same page as Himes, but the House Judiciary Committee, on a fully bipartisan basis, has called for more stringent reforms than what the Intelligence Committee or the DOJ view as acceptable, which has led to the halt in new legislation.

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