In a letter to Tuesday to congressional leadership, Attorney General Merrick Garland and Director of National Intelligence Avril Haines said the law, Section 702 of the Foreign Intelligence Surveillance Act, protects the U.S. from foreign-based cyberattacks and arms traffickers and yields intelligence to address challenges posed by China, Russia, Iran and North Korea.
“Over the last 15 years, Section 702 has proven invaluable again and again in protecting American lives and U.S. national security,” Mr. Garland and Ms. Haines wrote. They called its renewal a “top legislative priority” for the Biden administration ahead of its expiration at the end of the year, which is in doubt due to bipartisan concerns about the law’s impact on Americans’ privacy.
In a separate talk at the Brookings Institution think tank Tuesday morning, Assistant Attorney General Matt Olsen drew attention to the tools’ value in gathering intelligence on China, among other security challenges.
“At this moment, when China is ramping up its aggressive efforts to spy on Americans, we should not, we must not blind ourselves to that threat by allowing this critical authority to expire,” he said, in an apparent reference to the discovery of a surveillance balloon that breached U.S. airspace in February.
He also said the law had been used to disrupt attempts to recruit spies and had aided in identifying efforts to evade U.S. sanctions, preventing components of weapons of mass destruction from reaching foreign actors.
National security adviser Jake Sullivan also said in a statement that the program was “a cornerstone of U.S. national security” and that the administration strongly supports its renewal.
The spying program was created in the years following the Sept. 11, 2001, attacks, and was long viewed primarily as a counterterrorism tool. But the Biden administration argues its need has grown as the challenges to U.S. national security have expanded to include ransomware and great-power conflict with Russia and China, current and former officials said.
The spy program, classified details of which were revealed 10 years ago by former intelligence contractorEdward Snowden, allows the National Security Agency to collect without a warrant phone calls, texts, emails and other data that pass through the U.S. and are believed to belong to foreigners living abroad. It gathers communications directly from U.S. telecommunications firms and others like Alphabet Inc.’s Google, Meta Platforms Inc., Microsoft Corp., and Apple Inc. It was last renewed in 2018.
Privacy advocates say the program is inappropriately shrouded in secrecy and argue, among other issues, that it gives the Federal Bureau of Investigation access to Americans’ data without a warrant—a top area of concern for lawmakers considering potential changes. Though the program targets foreign suspects, data on Americans is often vacuumed up as well, such as when a foreign spy is communicating with someone in the U.S.
Critics of the program have clamored for years for more precise information about how the spying program implicates Americans, including disclosure concerning how many have had their data incidentally collected.
“This sweeping surveillance program lacks basic protections for Americans’ constitutional rights,” Sen. Ron Wyden, a Democrat on the Senate Intelligence Committee said. “Although 702 was originally created as a foreign surveillance program, it sweeps up vast amounts of Americans’ private communications.”
Mr. Olsen acknowledged during his speech that officials had “made mistakes in recent years that have undermined core public trust” in the program, saying that FBI personnel had searched collected information inadvertently.
“These mistakes are not acceptable,” Mr. Olsen said. “They aren’t acceptable to us, are not acceptable to the court or Congress, and not acceptable to the public.” He said reforms, including more stringent search settings on FBI systems and requirements for officials to write down justifications before accessing intelligence from a search for U.S. data, had led to a “dramatic decrease” in the number of U.S. queries since the changes were adopted in 2021.
The program’s renewal faces additional opposition from some conservative Republicans who have accused U.S. intelligence agencies of inappropriately spying on former President Donald Trump’s 2016 presidential campaign, in particular in an error-ridden surveillance application against onetime Trump campaign aide Carter Page. Mr. Page’s case didn’t involve the Section 702 authority and instead relied on a more traditional FISA warrant.
Despite that difference, errors concerning Mr. Page’s surveillance “cost us with the American people and the Congress,” Mr. Olsen said, adding that when it comes to renewing Section 702, “it is so much part of the challenge we face.”
