Congress passed a short-term budget resolution last Thursday which includes extending a National Security Agency (NSA) authority that allows for the warrantless collection of foreign suspects’ communications outside of U.S. borders.
The surveillance law, Sec. 702 of the Foreign Surveillance Intelligence Act (FISA), was set to expire on Dec. 31, but amid pressure from the intelligence community (IC) on the authority’s role in preventing terrorist incidents, lawmakers pushed reauthorization back to Jan. 19.
A statement issued Thursday from Department of Justice and IC officials urged Congress to keep the 702 authority open, and stated they could not support new legislation that would affect the operational effectiveness of the warrantless surveillance program.
“There is no substitute for Section 702. If Congress fails to reauthorize this authority, the Intelligence Community will lose valuable foreign intelligence information, and the resulting intelligence gaps will make it easier for terrorists, weapons proliferators, malicious cyber actors, and other foreign adversaries to plan attacks against our citizens and allies without detection. Section 702 has been instrumental in preventing attacks on the homeland and removing terrorists from the battlefield,” Attorney General Jeff Sessions, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Mike Pompeo, and NSA Director Adm. Mike Rogers wrote in their joint statement.
The 702 authority has garnered controversy for potential privacy and civil liberties violations, including the potential for incidental surveillance without a warrant of Americans overseas who may have their communications with foreign persons of interests picked up during intelligence gathering operations.
Several bills introduced in the House and Senate have offered varying degrees of 702 revisions, but none gained significant traction ahead of the year-end deadline.
Two separate FISA amendment reauthorization bills introduced in the House and Senate Intelligence Committees in the last couple of months only included a few revisions to quell certain privacy concerns.
The new legislation would require the FBI to receive permission from the Foreign Intelligence Surveillance Court before pursuing further communications of a U.S. person picked up through incidental collection. Surveillance authorities in this bill would expire after four years.
A third bill introduced in the House in October, the USA Liberty Act of 2017, offered more broad revisions. Data collected under 702 authorities without a warrant would not be allowed for use in pursuing criminal prosecutions of a U.S. citizen.
The bill also requires the NSA director and attorney general sign an affidavit affirming that communications collected under 702 that don’t involve foreign intelligence are deleted.
A bipartisan group of Senators issued a statement Thursday opposing a long-term 702 extension without congressional debate when Congress returns in January.
“Congress should not vote on any long-term reauthorization of Section 702 until both the House and Senate have fully debated meaningful reforms in 2018,” wrote Sens. Rand Paul (R-Ky.), Ron Wyden (D-Ore.), Mike Lee (R-Utah) and Patrick Leahy (D-Vt.).
The Senate voted 66-32 on the stopgap spending bill Thursday, which passed the House earlier that same day by a 231-88 vote.
