White House: Losing Section 702 spy powers would be among 'worst intelligence failures of our time'

The White House has weighed in on the Section 702 debate, urging lawmakers to reauthorize, "without new and operationally damaging restrictions," the controversial snooping powers before they expire at the end of the year.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the American government to monitor electronic communications of foreign persons outside of the United States [PDF], and people they confer with, including US persons. While it's supposed to be used as an intelligence tool — to prevent terrorist attacks or track down similar targets — it's also at times abused to conduct warrantless snooping on Americans including protesters, campaign donors, and elected officials.

The controversial law, introduced in 2008, is up for renewal at the end of the year, and the US intelligence community has been frantically lobbying to keep these surveillance powers. FBI Director Chris Wray said last week that Section 702 data was responsible for "97 percent of our raw technical reporting on cyber actors."

Now the White House has thrown its weight behind its intel services, arguing that curbing the legislation or letting it drop would be "one of the worst intelligence failures of our time."

In an effort to "inform ongoing discussions about Section 702's reauthorization," the Biden administration today released the "vast majority" of the President's Intelligence Advisory Board (PIAB) report on the Fed's surveillance power, voicing its support for reauthorization. 

"We agree with the unanimous conclusion reached by this group of independent, deeply experienced experts that failure to reauthorize Section 702 could be 'one of the worst intelligence failures of our time,'" the White House statement reads. 

"We also agree with the board's recommendation that Section 702 should be reauthorized without new and operationally damaging restrictions on reviewing intelligence lawfully collected by the government and with measures that build on proven reforms to enhance compliance and oversight, among other improvements," the statement continued.

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Despite unanimously recommending that Congress renew Section 702, the PIAB's report [PDF] does acknowledge that "complacency, a lack of proper procedures, and the sheer volume of Section 702 activity led to FBI's inappropriate use" of the surveillance powers to query US persons. 

However, the volunteer-board says it "found no evidence of willful misuse of these authorities by FBI for political purposes," and adds that the US Department of Justice has only spotted "three incidents of intentional misconduct from among millions of FBI queries." So that's all right then.

Let's look at the evidence

While there may be only three cases of intentional misconduct reported, the briefing does seem to gloss over the hundreds of thousands of instances of FBI misuse between 2020 and early 2021 alone — as well as the time and effort it takes to declassify these top-secret disclosures to give the public any insight into how these surveillance powers are being abused.

The report does recommend some reform that it says "would have minimal negative impact on national security, while increasing the public's confidence in Section 702."

These include establishing a common standard for US person queries across all agencies; boosting the FBI's internal compliance program; codifying policies and improving transparency by declassifying some categories of intercepted communications; and including the participation of amici curiae in the annual Section 702 certification process "to better protect privacy and civil liberties."

But it flat-out dismisses a warrant requirement prior to US persons queries as has been suggested by some US lawmakers. 

"A requirement that an intelligence agency should obtain a warrant or court order prior to every US person query of Section 702-acquired information would prevent intelligence agencies from discovering threats to the homeland," according to the report.

In another recommendation, the PIAB recommends removing the FBI's power to conduct US persons queries for evidence that is not related to national security crimes. 

This "misses the heart of the problem, which is that the FBI has abused its power for queries ostensibly conducted for just those reasons," said Jake Laperruque, deputy director of the Center for Democracy and Technology's Security and Surveillance Project, in a series of social media posts.

Laperruque cited several of these queries — a US senator, a US congressman, a state-level judge, Black Lives Matter protesters, a batch of 19,000 campaign donors, and a local political party — all conducted under the auspices of national security purposes and later determined to be inappropriate, according to the FISA court opinion [PDF].

"The only way to prevent the FBI from abusing US person queries of FISA 702 is to require court approval across the board," Laperruque said. "An exception for foreign intelligence queries is like trying to treat a root canal with a different brand of toothpaste." ®