Will ‘deep state’ fears kill a key surveillance tool?

Efforts to reauthorize a key tool that allows the government to surveil foreign suspects face a difficult road ahead as lawmakers from both parties raise concerns about implications for Americans.

Many Democrats have been suspicious of the program, Section 702 of the Foreign Intelligence Surveillance Act, since the Bush-era on civil liberty grounds. Some Republicans have raised similar concerns in the past, and are now citing botched surveillance applications in the Trump-Russia investigation that do not deal directly with the 702 statute.

“It’s my intent and I hope the intent of my colleagues that we do not reauthorize Section 702 because the FBI cannot be trusted,” Rep. Troy Nehls, R-Tex. said at last Wednesday’s hearing with special counsel John Durham.

The growing skepticism could create an unlikely bipartisan alliance to reform the post-9/11 program — or kill it altogether. Lawmakers must reauthorize it by the end of the year before the law sunsets.

“I think it’s a very heavy lift,” Rep. Jim Himes, D-Conn., the top Democrat on the House Intelligence Committee, told Semafor when asked about reauthorizing the section. “It was always going to be hard and it’s gotten harder.”

Himes pointed to a finding by the Foreign Intelligence Surveillance Court recently made public that the FBI improperly queried a database established under 702 278,000 times over the course of several years — a revelation that has spurred outrage among lawmakers on both sides of the aisle. The searches included improper queries in the course of investigations into both the Jan. 6 Capitol riot and the protests following the 2020 police killing of George Floyd.

“I will only support the reauthorization of Section 702 if there are significant, significant reforms,” Senate Judiciary Committee Chairman Dick Durbin, D-Ill. said at a hearing earlier this month. He said the reforms would need to impose new safeguards to prevent future abuses and allow better oversight by Congress and the courts.

Section 702 is likely to be reauthorized — there just will need to be changes to get there.

It’s a critical tool, according to national security officials, aiding everything from counterterror operations to cybercrime investigations. But the warrantless surveillance program for foreign targets has also long raised concerns about privacy and civil liberties because it results in the government incidentally scooping up information on Americans. Reauthorizing it in 2018 was a huge lift that ended up splitting both parties — it got past a Senate filibuster with exactly 60 votes.

A bipartisan working group of members on the House Intelligence Committee is reviewing potential reforms to both FISA and 702. Rep. Darin LaHood, R-Ill., the leader of the working group who himself was the subject of one of the FBI’s improper searches, told Semafor lawmakers are exploring ways to increase accountability for the bureau, bring more transparency to the Foreign Intelligence Surveillance Court, and put more “safeguards” in to guard Americans under 702.

“There will be no clean reauthorization,” he said, adding that the group plans to release a set of proposed reforms “fairly soon.”

Privacy-minded senators are also working on their own proposals. That includes Sen. Ron Wyden, D-Ore., who earlier this year secured the public release of an intelligence community report showing that the government buys up data on Americans from data brokers with little congressional oversight.

A Wyden aide told Semafor that the senator is working on a surveillance reform bill that will address 702, law enforcement surveillance activities, and executive order 12333, a broad directive governing the nation’s surveillance activities. “He expects to release it later this year with bipartisan support,” the aide said.

National security officials say that, more recently, they have implemented reforms to minimize improper searches, like putting in place mandatory training and stricter requirements for searches that involve elected officials, journalists, or religious figures. Himes suggested at a news conference last week that the potential reforms could range from codifying changes like these to adding new warrant requirements for searches involving Americans.

While the issue has created an alliance among the right and the left, the issues motivating members of both parties aren’t necessarily the same, which could mean they have more difficulty coming to an agreement on what needs to be changed.

Rep. Mike Quigley, D-Ill., a member of the House Intelligence Committee who described the program as a vital national security tool, told Semafor he is worried that far-right lawmakers will try to get rid of 702 or weaken it in such a way that renders it ineffective.

“There’s always a few things that you can tweak,” Quigley said. “But you reform police departments, you don’t defund them. You reform and tweak programs like FISA, 702, you don’t get rid of them, or good luck.”