Repent Your Abuses of Eavesdropping Law, Lawmakers Tell Intel Agencies

The FBI and intelligence community will have to assuage lawmakers’ privacy and civil-liberties concerns if they want to hang on to a controversial law that allows the warrantless collection of data on foreigners, House lawmakers said recently. 

Section 702 of the Foreign Intelligence Surveillance Act, or FISA, provides blanket approval for such digital surveillance. But the law, which is set to expire this year, has been criticized by privacy advocates because Americans’ data has been swept up in these collections. The FBI has come under scrutiny for misusing 702 data and violating policies that protect Americans’ privacy. 

On Thursday, Rep. Mike Garcia, R-California, warned FBI Director Christopher Wray that the House wouldn’t reauthorize Section 702 without sufficient “repent and remedy” from the government. 

“No one has been fired or arrested because of these abuses. We've had investigations that have been going on for years and we haven't seen any conclusion of those things,” Garcia told Wray during a House appropriations hearing. “If you don't also repent and show the remedy and the protocol changes that have taken place because of the abuses and you don't also demonstrate that people have been held accountable for it, I can almost assure you…that you won't have the votes.”

In fact, Garcia said, the intelligence community needs to do three things to ensure reauthorization: educate lawmakers; confess to past abuses and fire someone for them, and make changes to prevent future ones.

“There needs to be a public acknowledgment that FISA has been abused and in a either classified or unclassified environment explain what protocols have changed, what policies have changed, how we're holding people accountable,” said Garcia, who voted to overturn U.S. election results in 2021. “We need a pound of flesh, OK. We need to know that someone has been fired.”

Rep. Austin Scott, R-Ga., echoed those sentiments at a House defense subcommittee hearing that same day. Scott said there must be “consequences for the people who abuse that authority” and “guardrails for 702 to be reauthorized because of the abuses that have occurred.”

Meanwhile, the U.S. Privacy and Civil Liberties Oversight Board, set up after 9/11 to advise Congress about privacy and civil liberties amid government anti-terrorism efforts, is preparing to update its 2014 report on Section 702, its scope, privacy implications, and abuse. It will also recommend reforms, said two board members who testified last week.  

In written testimony, Beth Williams, a board member, denounced the FBI’s queries of U.S. persons on 702-collected information. But she also said that improper data collection and failure to comply with policies was rare—less than a tenth of a percent for the NSA and FBI. 

The privacy board’s chair, Sharon Bradford Franklin, wrote that 702 creates privacy risks that “can and should be addressed without undermining the core value of the program.”

Such remedies, Bradford Franklin suggested, would include identifying how many Americans’ communications are collected under 702 and perhaps adding an additional FISA court review for queries of Americans. 

“The extent of incidental collection matters, because the greater the number of Americans who are directly affected, the greater the need for Congress to ensure the safeguards throughout the 702 program are sufficient,” she wrote. “So, when the alternative is that we have no estimates at all on the scope of incidental collection, I believe an estimate that involves some margin of error can still be meaningful and helpful to Congress as you assess what safeguards are needed under Section 702."

Intelligence leaders have painted 702 as too useful to let go. Gen. Paul Nakasone, the director of the National Security Agency, told lawmakers during a House defense subcommittee hearing Thursday that 59 percent of the president's daily briefing articles contained information derived from the agency’s queries of section 702 data.