The U.S. has used electronic surveillance programs to catch fentanyl smugglers and the hackers who temporarily shut down a major U.S. fuel pipeline, the White House said Tuesday as part of its push to have those programs renewed by Congress.
Section 702 of the Foreign Intelligence Surveillance Act expires at the end of this year. President Joe Biden's administration is trying to convince Congress to renew the law, which authorizes spy agencies to capture huge swaths of foreign emails and phone calls. But lawmakers in both parties have concerns about protecting Americans' privacy from warrantless searches after a series of FBI errors and misuses of intelligence data.
As part of its public campaign, the Biden administration released what it said were newly declassified examples of how U.S. intelligence uses Section 702. And the FBI announced new penalties for employees who misuse intelligence data in advance of a closely watched Senate Judiciary Committee hearing on the program Tuesday morning.
Previous administrations have often cited the importance of Section 702 in stopping terrorism. But two decades after the Sept. 11 attacks, the U.S. public is broadly skeptical of intelligence agencies and less certain of sacrificing civil liberties for security.
This time, the White House and supporters of Section 702 are targeting concerns over fentanyl, a synthetic opioid blamed for 75,000 U.S. deaths last year, and the shutdown of Colonial Pipeline, which led to gas shortages along the East Coast two years ago.
Senior administration officials briefed reporters on the new examples Monday on condition of anonymity under ground rules set by the White House.
Among the other examples the officials gave: The U.S. learned about Beijing's efforts to track and repatriate Chinese dissidents; the FBI was able to warn an American who was the target of foreign spies seeking information about the proliferation of weapons of mass destruction; and the U.S. identified the people behind an Iran-linked ransomware attack against nonprofit groups last year.
The United States has already credited Section 702 with being used in the operation to kill al-Qaida head Ayman al-Zawahri and providing large amounts of the intelligence briefed daily to the president and other top officials.
The administration officials said they provided more specifics to Congress in classified briefings.
"We are trying to walk a careful line here where we're trying to explain both to the public and to members of Congress the importance of Section 702," one official said. "But at the same time, we do need to be very careful about protecting the ways in which we collect information."
Under Section 702, the National Security Agency collects large amounts of foreign emails, phone calls, and other communications that the NSA and other agencies can then search for intelligence purposes.
Failure to follow rules
That collection often snares the communications of Americans. While U.S. spy agencies are barred from targeting U.S. citizens or businesses, they can search Americans' names in Section 702 data and the FBI can use that data to investigate domestic crimes.
A series of surveillance court opinions and government reports has disclosed that FBI agents at times have failed to follow rules on searching that data. Agents wrongly ran queries for the names of a congressman on the House Intelligence Committee, people linked to the January 6 insurrection, and participants in the 2020 protests following the police killing of George Floyd.
The FBI, backed by the White House and some Democrats, argues it has instituted better training and new rules that have sharply reduced the number of searches for American citizens. Supporters of the FBI say Congress should enshrine those rules into law so they can't be rolled back easily.
The bureau said Tuesday that it would begin to immediately suspend any employee's access to Section 702 databases for an incident involving "negligence." Repeat mistakes could result in an employee being reassigned or referred for an internal investigation.
Concerns from both parties
Some key Republicans want to impose new criminal penalties on FBI agents accused of wrongdoing. Many in the GOP are deeply angry at the FBI for the mistakes as well as for omissions in the bureau's investigation of former President Donald Trump's ties to Russia. Some echo Trump's attacks on the FBI as part of a so-called "deep state."
"There are reforms that are necessary," said Rep. Darin LaHood, an Illinois Republican who previously disclosed that agents searched his name in intelligence databases. "Figuring out the proper reforms and safeguards that we need to put in place is what we're discussing to try to see if we can get it reauthorized."
And other Democrats say they won't vote to renew Section 702 without restrictions on access to U.S. citizens' communications.
Senior Biden administration officials reiterated Monday that they oppose proposals to require the FBI to get a warrant every time it searches for an American's information. Previous administrations have fought the idea as well.
The U.S. public at large is also skeptical of surveillance practices, according to new polling from The Associated Press-NORC Center for Public Affairs, with Democrats and Republicans opposing some practices authorized by Section 702 in roughly equal measure.
A coalition of 21 civil liberties groups issued a letter Monday saying lawmakers should not renew the law without "critical reforms," including a warrant requirement.
"Although purportedly targeted at foreigners, Section 702 has become a rich source of warrantless government access to Americans' phone calls, texts, and emails," the letter says. "This has turned Section 702 into something Congress never intended: a domestic spying tool."
