The House Intelligence Committee is unveiling a series of proposals to reform a key surveillance tool that’s been both credited with preventing terror attacks on U.S. soil as well as accused of being a vehicle for spying on U.S. citizens.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) lets the U.S. government keep tabs on specific foreign nationals outside the country without first obtaining a warrant to do so.
The 73-page report by Republicans on the committee’s bipartisan FISA Working Group was led by Rep. Darin LaHood, R-Ill. It defends section 702, added to FISA in 2008, as a critical part of U.S. defense in the wake of Sept. 11, 2001.
“[I]t is hard to find an adjective that adequately describes a tool that has done as much to safeguard American lives and liberty as it has,” the report said. “We are unable to calculate just how many lives it has saved. It is worth noting that there has not been another 9/11 since Section 702’s inception, despite the persistent threat of terrorism.”
The FBI has used FISA to investigate Americans more than 278,000 times in 2021, including Jan. 6 protesters and George Floyd demonstrators. (Getty)
However, the report also acknowledges, “Section 702 has a number of problems requiring significant reform — from the need for increased penalties, compliance, and oversight, to the querying abuses by the FBI.”
Section 702 is set to expire at the end of this year, and is already facing an uphill battle for renewal.
Critics of the program have accused it of being overbroad and susceptible to abuse. Members of Congress on both the extreme right and left have claimed it encroaches on Americans’ civil liberties, specifically if the FBI conducts warrantless surveillance on communications between Americans and foreign nationals.
Allies of former President Donald Trump, like Reps. Matt Gaetz, R-Fla., and Marjorie Taylor Greene, R-Ga., have claimed the program was used to improperly spy on the Trump 2016 campaign, including ex-aide Carter Page.
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But the Friday report sought to beat back those accusations. Lawmakers disputed the notion that Section 702 allows the intelligence community to access all of a U.S. citizen’s correspondence if they communicate with a foreign national.
“If a U.S. person communicates with a target of Section 702 collection, only the specific correspondence in which the foreign target is a party is collected — this is referred to as ‘incidental collection.’ The government can never target U.S. persons whose communications are incidentally collected under Section 702,” it said.
Allies of former U.S. President Donald Trump have said that Section 702 was used to spy on his 2016 campaign, a charge which the Thursday report denies. (Sean Rayford/Getty Images)
The report also calls Section 702 “individualized and extremely limited” to foreigners “who possess or communicate specific types of foreign intelligence information.”
And while lawmakers acknowledge that FBI abuses were found to have occurred in the FBI’s surveillance of Page and the 2016 Trump campaign, they maintained that those were separate from Section 702.
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Among the specific reforms to the FISA tool that the House Republican report offered were proposals to drastically limit the number of FBI personnel who can authorize specific instances of Section 702’s use, and strengthening warrant requirements on some instances of surveillance.
Lawmakers also proposed barring the FBI from getting Section 702 information that is not specifically related to a specific existing national security case.
Details on suggested heightened penalties for abuse of FISA and Section 702 were also included.
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They sought to give Congress greater oversight over the FISA courts as well, including allowing members of Congress to attend sessions as well as requiring court hearings to be transcribed and made available to lawmakers.
The report also included ways to expand Section 702 for what lawmakers argue is more effective use – such as “to expand the ability for the NSA to target international drug trafficking operations, including those distributing fentanyl and precursor chemicals, by including counternarcotics in the definition of Foreign Intelligence.”