The Sinking Section 702 Wiretap Program: A Last Lifeboat Offered

Dell Cameron

A bill introduced by senators Dick Durbin and Mike Lee to reauthorize the Section 702 surveillance program is the fifth introduced in the US Congress this winter. The authority is threatening to expire in a month, disrupting a global wiretapping program said to inform a third of articles in the President’s Daily Briefing—a morning “tour d’horizon” of US spies’ top concerns.

But the stakes aren’t exactly so clear. With or without Congress, the Biden administration is seeking court approval to extend the 702 program into 2025. From the moment US representative Mike Johnson assumed the House speakership, he’s been unable to orchestrate a vote on the program. Outgunned most recently by Mike Turner, the chairman of the House Intelligence Committee, Johnson was forced to kill a vote after a month of negotiations.

This, even though Congress can essentially agree on one thing if nothing else: that the 702 program is vital to the national defense and that it can’t be allowed to expire. Johnson has, once again, vowed to hold a vote on the matter, this time after Easter. And historically, this is where things have begun to fall apart.

The most significant barrier to reauthorization of the program is a clash amongst lawmakers regarding whether the government should acquire search warrants prior to interrogating Americans via 702, a vast wiretap database brimming with numerous email, voice, and text dialogues intercepted by undercover agents.

The Durbin-Lee bill includes adjustments aimed, according to its authors, to accommodating the Biden administration halfway. Until now, all legislations sparred over the title of “reform bill,” however, Durbin’s sight is set on a concept much more defensible: He professes, The Security and Freedom Enhancement (SAFE) Act is a “bill of compromise.”

As opposed to other reform bills, the SAFE Act would not necessitate the FBI to secure a warrant to establish if the 702 database comprises an American’s communications. Investigators would need a warrant only if the search generates results, and only if they wish to comprehend the content of the messages.

Investigators can ascertain whether the communications they’re tracking exist, if the person they’re probing has had any interaction with overseas persons under US scrutiny, and the exact timing of those exchanges without going to court. Considering it’s comparatively easy for law enforcement to secure these kinds of records anyway, this compromise doesn’t present a significant setback for lawmakers advocating reform.

The tweak will add to the difficulty the FBI is having convincing lawmakers that warrants will hinder investigations or destroy the program altogether. “This narrow warrant requirement is carefully crafted to ensure that it is feasible to implement,” Durbin says, “and sufficiently flexible to accommodate legitimate security needs.”

“There is little doubt that Section 702 is a valuable national security tool,” adds Durbin, but the program sweeps up “massive amounts of Americans’ communications.”

“Even after implementing compliance measures, the FBI still conducted more than 200,000 warrantless searches of Americans’ communications in just one year—more than 500 warrantless searches per day,” he says.

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The SAFE Act contains the same menu of emergency exceptions that members of the House Judiciary Committee offered up in previously introduced legislation. The exceptions would allow the FBI to ignore the warrant requirements during emergencies, such as people faced with imminent harm or death. The bureau can search the database at will using “known threat signatures” linked to cybercrimes as well, a carve-out designed to help the FBI dodge legal red tape while mitigating harm from malicious software.

While the Foreign Intelligence Surveillance Court (FISC) may approve the Biden administration’s request, extending the 702 program into 2025 by its own, it’s an outcome that all sides seem eager to avoid—improvising a way to prolong a contested surveillance program isn’t a good look for anyone involved.

One of the core principles of the program, as stated in a “fact sheet” issued by the Office of the Director of National Intelligence (ODNI) this year, represents the deal it constructs between the government and the public: US spies are provided an “invaluable source of intelligence on foreigners situated outside the US.” In exchange, Americans receive “robust civil liberties and privacy safeguards, watched over by all three branches of government.”

If Congress had intended in 2018 to reauthorize the 702 program for seven years instead of six, its members wouldn’t have found out last week. Letting the program proceed without a mandate from Congress—with nothing but a green light from a secret court—is a legacy of dysfunction that most members aren’t eager to embrace, and one that the intelligence community may also come to resent, as people begin to question the integrity of its supervision.

“Although the legislation doesn’t include every reform we have asked for, it represents a thoughtful compromise that would meaningfully restore privacy in the United States,” says Sean Vitka, policy director at Demand Progress, a digital rights nonprofit.

“An overwhelming number of Americans from across the political spectrum want Congress to seize this once-in-a-generation moment and get this done.”

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