FBI Director Christopher Wray defended a controversial foreign surveillance tool on Wednesday during an oversight hearing, telling the House Judiciary Committee that the agency has made changes to protect the privacy of Americans.
But those arguments were a dud in front of Republicans, who criticized the breadth of the Section 702 program and zeroed in on how it allows U.S. authorities to run warrantless searches for information on Americans and criticized the volume of those searches.
The exchanges underscored the headwinds facing Justice Department and intelligence officials as they push for the reauthorization of the surveillance tool known as Section 702, which expires at the end of the year.
Section 702 allows the U.S. government to collect the digital communications of foreigners who are located outside the country. But civil liberty groups and some lawmakers raise concerns that the law sweeps up communications from U.S. citizens.
Rep. Ben Cline, R-Va., said the Section 702 surveillance authority sweeps in a large amount of communications from Americans, and the FBI routinely runs “backdoor” searches of the data, looking for phone calls, emails and text messages.
“It looks like a framework that enables the FBI to spy on countless Americans,” Cline said.
Wray responded that the FBI only accesses about 3 percent of the total information collected under Section 702.
“And within that 3 percent — this is important now, it’s important that people understand this — the FBI ends up only accessing content in like 1 and a half percent of that,” he said. “So a little context is appropriate.”
That answer didn’t go far with Cline, who said the searches pose a problem for the agency in the reauthorization debate.
“If you’re conducting hundreds of thousands, or even just hundreds, of warrantless searches of Section 702 data for Americans’ communications, it’s clearly a domestic surveillance tool,” Cline said.
Wray told the committee his agency has had “failures” complying with the Foreign Intelligence Surveillance Act and has implemented reforms and is making progress.
“We have had problems. And those problems are unacceptable and I’m determined with my leadership team to fix them,” Wray said. “But those problems, almost entirely, predate those reforms.”
A court order unveiled earlier this year showed the Foreign Intelligence Surveillance Court has found “persistent and widespread” compliance problems with the FBI’s searches under Section 702.
The reauthorization path for the administration has been made more difficult by revelations tied to the broader Foreign Intelligence Surveillance Act in recent years.
House Judiciary Chairman Jim Jordan, R-Ohio, highlighted how the FBI conducted 204,000 searches of foreign surveillance data for Americans over a 12-month ending in the winter of 2022, according to a report from the Office of the Director of National Intelligence.
That number is down from the 3.4 million searches a year earlier in the same time frame, but has still not satisfied lawmakers who say the warrantless searches on American data violate constitutional protections.
“You can’t make this stuff up. There are 204,000 reasons why Republicans will oppose FISA reauthorization in its current form,” Jordan said.
The Biden administration characterizes the surveillance power as a cornerstone of national security. The law has disrupted planned terrorist attacks, identified foreign ransomware attacks on U.S. infrastructure and contributed to the drone strike that killed Ayman al-Zawahiri last year, U.S. authorities have told members of Congress.
Congressional lawmakers on both sides of the aisle are using the program’s reauthorization as a leverage point to demand changes.
Under questioning from Rep. Zoe Lofgren, D-Calif., on Wednesday, Wray said there’s no warrant requirement under the Fourth Amendment for Section 702 queries.
Lofgren responded that the committee will look into a warrant requirement later on — something Jordan immediately agreed with.
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