The CIA Is Begging Congress to Please Keep Spying on U.S. Citizens Legal
- Oops!Something went wrong.Please try again later.
High-level officials from the CIA, FBI, and NSA are testifying before the Senate Judiciary Committee today, asking Congress to continue allowing the agency to spy on the communications of US citizens. They are urging Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA)—one of the nation’s most hotly contested government surveillance programs. Intelligence agencies have long cited the powerful 2008 FISA provision as an invaluable tool to effectively combat global terrorism, but critics, including an increasing number of lawmakers from both parties, say those same agencies have morphed the provision into an unchecked, warrantless domestic spying tool. The provision is set to expire at the end of this year.
Federal agents urged lawmakers to reauthorize 702 without adding new reforms that could potentially slow down or impair operators’ access to intelligence. The officials danced around advocates’ concerns of civil liberty violations and instead chose to focus on a wide array of purported national security threats they say could become reality without the “model piece of legislation.” Multiple intelligence agents speaking Tuesday invoked the specter of September 11th and warned lawmakers new safeguards limiting agents’ ability to rapidly access and share intelligence on Americans could risk a repeat scenario.
Read more
“We must not forget the lessons learned from 911” DOJ National Security Division Assitant Attorney General Matt Olsen said. Olsen laid out the stakes of the hearing saying reauthorizing 702 as the “single most consequential national security decision this Congress can make.”
“The stakes cannot be higher,” he added.
Top senators on the committee meanwhile challenged the agencies and said it was vital to put in place new safeguards such as requiring warrants before searching US citizens’ records stored on the 702 databases. Senate Judiciary Chair Dick Durbin, during his opening statement, drew a hard line in the sand, vowing not to reauthorize the program without new constitutional safeguards
“I will only support the reauthorization of section 702 If there are significant, significant reforms,” Durbin said. “And that means, first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”
Today’s hearing could provide a sharp contrast to an April hearing held by the House Judiciary Committee, where expert witnesses and lawmakers alike criticized the program and railed against intelligence agencies for lacking sufficient oversight or transparency. Though first introduced as a means to quickly target foreign espionage targes, section 702 has become something else entirely, according to critics like the ACLU and the EFF, who argue the government “routinely” uses the provision to collect communication information of Americans who, for whatever reason, may have had communication with a surveillance target outside of the US. Intelligence officials, during the hearing, will get their opportunity to convince the public and Congress if those privacy tradeoffs are worth it.
Click the link below to watch the hearing.
Intelligence agents say 702 is “essential” to modern intelligence gathering
The words, “invaluable,” essential” and “indispensable” were among the words repeatedly used by the officials on Tuesday to describe 702. Each of the witnesses provided examples of times when their respective agencies used the program to thwart cyber attacks, investigate and disrupt fentanyl production abroad, identify bad actors engaged in ransomware attacks, and prevent a string of potential kidnappings and killings. Reforming 702 to place more barriers before intelligence agents collect information, NSA Deputy Director George Barnes warned, woud diminish operators’ effectiveness and expose the US to more harm.
“Without it, our ability to preserve the nation’s security would be significantly impaired,” Barnes testified. CIA Deputy Director David Cohen agreed and said 702 was “simply a key tool in our arsenal” to protect intelligence officers and espionage assets under their purview.
The officials similarly attempted to stress the ubiquity of 702’s use in intelligence gathering. During his testimony, Barnes claimed more than half (59%) of daily presidential brief articles intelligence acquired by NSA under Section 702 authority. Barnes said intelligence gleaned from 702 was used to thwart a 2009 New York City subway bombing and helped lead to the assassination of Ayman al-Zawahiri, a terrorist believed to have planned the 9/11 attacks.
“Last year, nearly every item in the presidential priority was addressed in some way shape of form by 702,” Barnes said. “It’s not replaceable” “It’s agile, specific, and efficient.”
FBI offers up ‘three strike policy’ for agents misusing American data
FBI and DOJ officials testifying during the hearing tried to convince lawmakers their own, safeguards were more than enough to reauthorize 702 as is. Abbate the FBI Deputy Director, tried to bolster that narrative by announcing a pair of new compliance safeguards ostensibly aimed at holding agents accountable for misuse of Americans’ data.
The first proposed reform would integrate a three-strike policy of escalating punishments every time an analyst was found to have improperly accessed FISA data. The three strikes would have escalating penalties for abuses, starting with analysts’ loss of access to FISA data on the lower and up to termination. Additionally, Abbate said the FBI would evaluate agency leaders on their compliance record. Leaders’ performance on that evaluation, Abbate said, could affect their ability to get promoted.
Critics weren’t entirely persuaded by the FBI’s new proposal. Durbin said he need to see stronger, more expansive reforms before he’d feel confident voting for reauthorization. Others like Center for Democracy Deputy Director on Surveillance Jake Laperruque said the solutions felt out of touch with the severity of agents of intelligence agents skirting up against America’s Fourth Amendment protections.
“Not sure if ‘Hey if you’re staff keep violating these query rules all the time and committing abuses, you might not get your bonus’ is a remedy quite on the level with this problem,” Laperruque said.
FBI claims it ‘cannot afford to lose’ domestic spying tools
Paul Abbate, the FBI Deputy Director, provided a preview of his agency’s defense for Section 702 last week at the Boston Conference on Cybersiiiiecurity, where he told audience members his agency, “cannot afford to lose” the provision. During his speech, Abbate said 702 gives intelligence agencies the investigative flexibility to “connect the dots” between foreign surveillance threats and potential targets within the US.
“FISA 702 keeps us agile and efficient, and it is absolutely critical for the FBI to continue protecting the American people—not just from cyberattacks but also from terrorist attacks, foreign spies, and a host of other hostile threats,” Abbate said.
FBI agents aren’t the only government agency going to bat for 702. The Biden administration has spent months signaling its support for reauthorizing the measure. More recently, an official from the State Department claimed intelligence gleaned from the program was instrumental in helping analysts monitor “Russian atrocities” in Ukraine, take action against an unnamed Middle Eastern state that allegedly tracked dissidents abroad, and warn US business about a North Korean attempt to fund a nuclear through a digital fraud operation.
Senators and spooks spar over warrant requirement
Experts from each of the major intelligence agencies attending the hearing were unwilling to accept an increasingly common proposal among lawmakers: force agents to obtain a warrant before searching for US communications stored on the 702 databases. DOJ Assitant Attorney General Olsen forcefully pushed back against calls for a warrant requirement which he said claimed are “unworkable and not legally required.” The DOJ official claimed warrants weren’t required because the data in question was legally acquired by collecting communications from a foreign target. Olsen, and the other agents testifying, would prefer to codify their own self-imposed “reforms” into law than move forward with warrants.
Senators Durbin, Lindsey Graham of South Carolina, and John Osoff of Georgia all expressed concerns with that line of reasoning and said it was too easy for FBI agents to access Americans’ communications. In the case of viewing US communications, agents aren’t even required to have a national security justification. Olsen himself admitted the ease with which analysts can summon the data and compared it to “searching for something in your email inbox.”
Privacy groups call 702 a ‘domestic spying tool’
Prior to the hearing, a coalition of 21 organizations, including The Brennan Center for Justice and the Center for Democracy and Technology, released a statement arguing 702 had become “a rich source of warrantless government access” to phone calls, texts, and emails of people based in the US. The groups claim the NSA “routinely” shares information about Americans with the FBI, CIA, and National Counterterrorism Center, which then stores that data for at least five years. These intelligence agencies are also able to search through the 702 databases to pull up sensitive information about US citizens. This reimagining of the intended “incidental collection” of Americans under the provision, they said, amounts to a “bait and switch that guts Americans’ Fourth Amendment protections.”
Intelligence agencies like the FBI and NSA have invoked 702 to collect information on various sensitive groups engaged in political advocacy and dissent. In recent years, intelligence officials have used the provision to vacuum up communications from more than 100 Black Lives Matter activists, multiple journalists and political commentators, college students, and at least one sitting US representative.
Civil liberties advocates and multiple US lawmakers say Congress should legally require intelligence agencies to obtain a warrant to search for US citizens’ communications before voting to reauthorize 702. That requirement would, in theory, make it at least a bit more difficult for three-letter agencies to use 702 as an “end-run around Americans’ constitutional rights,” as the ACLU put it.
Update 12:00 EST Added details from the hearing.
Update 12:55 EST: Added details from the hearing.
More from Gizmodo
Sign up for Gizmodo's Newsletter. For the latest news, Facebook, Twitter and Instagram.
