Biden admin to seek surveillance court blessing to renew Section 702 program through next year

The Biden administration will ask a prominent national intelligence court to reauthorize a soon-to-expire contested spying power through April of next year, multiple outlets reported on Wednesday evening.

The White House will seek the blessing of the Foreign Intelligence Surveillance Court to extend spying authorities in Section 702 of the Foreign Intelligence Surveillance Act, a measure that allows spy agencies to scoop up foreign targets’ communications data for national security and terrorist investigations. Targeting is still permitted even if the collected information includes communications with U.S. citizens, raising concerns about how Americans’ data are warrantlessly swept up in the process.

The administration is expected to file the extension request with the court next month to get ahead of its expiration this April, Reuters reported, citing a statement from Assistant Attorney General Matthew Olsen. Congress last year came to a stalemate on reforming the power, pushing it down the line for later consideration.

A bipartisan civil liberties coalition on Wednesday urged congressional leaders to stop the spying power’s reauthorization measure from being incorporated into upcoming must-pass bills needed to keep the government funded through the springtime.

But it appears that the administration intends to work around the deadline, a move that’s upset civil liberties leaders on both sides of the political aisle.

“It’s incredibly frustrating, and shows how much preserving the status quo is a priority over letting Congress vote on reforms and changes,” said Jake Laperruque, deputy director of the Security and Surveillance Project at the Center for Democracy and Technology.

“It's a cynical move given that Congress is currently considering reauthorization and also just completely disrespectful of the role of Congress here,” said Kia Hamadanchy, senior counsel at the American Civil Liberties Union.

“We warned of this exact outcome when a clean short term reauthorization of Section 702 of FISA was included in the NDAA. This entirely predictable action by the government shows what little regard they have for the role of Congress in this conversation. Asking for a year long extension from FISC on such a controversial program that Congress hasn’t had a meaningful vote on is simply unacceptable,” Americans for Prosperity senior technology analyst James Czerniawski said.

FBI Director Christopher Wray on Thursday told an audience at the Intelligence and National Security Alliance organization that the surveillance tool is an absolute necessity for intelligence agencies.

“We're talking about terrorism looming at the speed of social media, cyber attacks that have to be resolved in hours. Time matters and that’s where 702 is most useful,” he said, acknowledging that there are times where the tool has been abused, but “we shouldn’t throw the baby out with the bathwater.”

The 702 ordinance was born out of Bush-era surveillance measures enacted in 2008 that sought to bolster the spying capabilities of U.S. intelligence agencies in the aftermath of the September 11 attacks, lifting silos on telecommunications data sharing and other common digital signatures.

The FISA court itself was established in 1978 to oversee surveillance warrant requests and has historically come under harsh criticism for its esotericism and the limited number of intelligence-gathering requests that it rejects.

“It is utterly ridiculous that the Biden Administration and the Justice Department would rather risk the long-term future of an important surveillance authority than support a single meaningful reform to protect Americans’ rights,” said Sen. Ron Wyden, D-Ore., a privacy-focused lawmaker who sits on the Senate Intelligence Committee.

Defense One Senior Editor Lauren C. Williams and Nextgov/FCW Staff Reporter Natalie Alms contributed to this report.