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A Republican rift is jeopardizing extension of a cornerstone of the US intelligence gathering by which the government hoovers up massive amounts of internet and cellphone data.
The trove of data now in jeopardy has vital importance to the US. According to one assessment, it forms the basis of most of the intelligence the president views each morning, and it has helped the US keep tabs on Russia’s intentions in Ukraine, identify foreign efforts to access US infrastructure, uncover foreign terror networks and thwart terror attacks in the US.
But none of this should completely distract Americans from the very real bipartisan debate about whether new constraints should be put in place on how the government accesses the massive amount of data it collects in the program under the Foreign Intelligence Surveillance Act’s Section 702 – and the hundreds of thousands of Americans whose information is incidentally accessed each year without a warrant.
Trump misstated facts in effort to ‘KILL FISA’
In a social media post, former President Donald Trump called for Republicans to “KILL FISA,” claiming, incorrectly, that the portion of the law needing renewal was used to spy on his 2016 presidential campaign.
Trump’s call, which came despite the fact that he reauthorized the program during his time in office, ignited a predictable revolt among right-wing Republicans. They scuttled House Speaker Mike Johnson’s plan to extend the FISA Section 702 program with minimal tweaks. Democrats opposed the procedural vote en masse.
It is true that the FBI obtained warrants through FISA to wiretap Carter Page, an adviser to Trump’s first presidential campaign. In that process, warrants were obtained due to Page’s deep ties to Russia.
But the part of the law Trump is now trying to kill, Section 702, concerns what the US government does without warrants, a key distinction between the targeted monitoring of a US citizen like Page and the wholesale collection of massive amounts of data the government keeps locked away and routinely accesses.
When does the program end?
Lawmakers are looking for a Plan B way to extend the Section 702 authority before it lapses on April 19. The Foreign Intelligence Surveillance Court recently OK’d procedures for the program through April 2025, but if the authority lapses, it is possible that US companies could stop providing the government with data on which it is based.
What kind of data are we talking about?
Under updates to the FISA law enacted in 2008, the government has the ability to compel US phone companies and internet providers to provide access to communications across the “backbone” of the internet. The government can also compel access to phone information that can allow it to obtain the content of calls and also require email providers and others to provide communications from a specific address.
It’s hard to quantify exactly how much data and communications this represents, but the scope is massive.
That’s not all. According to a September 2023 public oversight report by the Privacy and Civil Liberties Oversight Board – which was formed to periodically assess the program – in addition to the above methods of collecting data, the board refers to an additional “highly sensitive technique” that was only authorized in 2022.
What does the government do with all this data?
The trove of data, including a large portion of US internet traffic, is meant to provide US intelligence agencies with quick access to data regarding foreigners in other countries.
According to the National Security Agency, 60% of what appears in the Presidential Daily Brief has some data that comes from the 702 program. The Oversight Board report says searches of the data are critical to informing the US understanding of Russia’s aggression against Ukraine, foreign actors plotting cyberattacks in the US and China’s targeting of dissidents.
How does this involve Americans?
The data of Americans is frequently accessed by what critics refer to as “backdoor” searches when they communicate with or their information is referenced by foreigners under scrutiny.
The 702 program has been updated in the years since its inception, including in 2018, to include new protections to minimize Americans’ communications from being accessed without a warrant.
But the Brennan Center for Justice at New York University cites public data that suggests the FBI conducts hundreds of thousands of such “backdoor” searches each year. Read more about backdoor searches from CNN’s Katie Bo Lillis.
The Brennan Center noted publicly known infractions, much of them documented in that Privacy and Civil Liberties Oversight Report, include authorities accessing “the communications of 141 Black Lives Matter protesters, members of Congress, 19,000 donors to a congressional campaign, a local political party, and tens of thousands of people involved in ‘civil unrest.’”
Is there any oversight of this program?
Yes. While it does not approve individual warrants for the Intelligence Community or FBI to search through the data, a special Foreign Intelligence Surveillance Court does approve procedures for how the data is to be accessed. The Office of the Director of National Intelligence has a flow chart that attempts to explain them.
What are proposed fixes?
There are bipartisan proposals to add additional protections for Americans, perhaps including a new requirement for the government to obtain a warrant before accessing most communications involving Americans.
Additionally, these proposals would bar the government from sidestepping warrant requirements by simply buying the data of Americans from so-called data brokers. Johnson dropped a proposal that was overwhelmingly endorsed by the House Judiciary Committee from the bill that failed this week.
Why not require warrants for Americans?
FBI Director Christopher Wray told House lawmakers Thursday that the warrant requirement would be harmful.
“Let me be clear,” he said. “Failure to reauthorize 702 or gutting it with some kind of new warrant requirement would be dangerous and put American lives at risk.”
He said the FBI is increasingly concerned about a coordinated terror attack inside the US and mentioned the concert hall attack in Moscow, which the US government warned Russian authorities to expect.
Speaking on CNN Thursday afternoon, former CIA Director Leon Panetta said speed can be essential when utilizing this data.
“You’ve gotta be able to move quickly, to be able to pick up these calls in order to determine whether or not there is an immediate threat that is taking place,” he said, arguing the program helped break up attacks planned on the New York City subway.
