House Intelligence Committee Chairman Mike Turner and ranking member Jim Himes sent out invitations last week announcing a “bipartisan celebration” of the continuation of the 702 program. The event, which lawmakers have dubbed FISA Fest, will take place Wednesday evening in a reception room at the U.S. Capitol building.
A spokesman for the House Intelligence Committee did not respond to a request for comment.
Turner and Himes were instrumental in maintaining the FBI’s unauthorized access to 702 data. In countless “briefings” since October, the two have urged members of their respective parties not to restrict the FBI’s authority too much. Instead, the new procedures designed by the office itself were touted by both lawmakers as a sufficient bulwark against further abuse.
After narrowly winning that battle last month, Himes and Turner worked to defeat a change that would have forced FBI employees to obtain search warrants before reviewing the communications of Americans targeted by the program. (The amendment rejected by the Biden White House failed on a tie vote of 212-212.) Instead, FBI procedures, now part of the 702 Statute, require employees to explicitly “opt in” before enlisting access the listening devices. They must also obtain permission from an FBI attorney before conducting “batch queries” on the database. And communications requests from elected officials, reporters, academics and religious figures are now all considered “sensitive” and require approval from higher levels of leadership.
Congress enacted Section 702 in 2008 to legitimize an existing National Security Agency (NSA) surveillance program that is conducted without congressional oversight or approval. The program, narrower in scope at the time, intercepted communications that were at least partially domestic in origin but related to a target the government believed was a known terrorist. As Congress brought surveillance under its jurisdiction, it has helped steadily expand the scope of surveillance to cover a new range of threats, from cybercrime and drug trafficking to weapons proliferation.
While proponents of 702 surveillance often suggest that wiretapped Americans are communicating with terrorists — a fabrication that Turner himself has repeatedly given credence to this year — the claim is dubious. The US government’s official position is that it is impossible to know which US citizens are being monitored or how many. The main goal of the 702 program is to obtain “foreign intelligence,” a term that includes not only terrorism and acts of sabotage, but also information the government needs to conduct its own “foreign affairs.”
Surveillance critics fear that the range of possible targets extends far beyond what is described in unclassified environments. It is undisputed that the U.S. government—like all governments with spying powers—finds reasons to spy on foreign allies, corporations, and even news publications. As long as the target is a foreigner, he or she has no rights to privacy.
The limits of the 702 program remain unclear, even to members of Congress who insist it should not be further restricted. Senate Intelligence Committee Chairman Mark Warner admitted to reporters this week that the language in Section 702 needs to be “corrected,” even though he voted to enact the current language law last month.
FISA experts had warned for months that the new language introduced by the House Intelligence Committee was far too vague in describing the categories of companies that the U.S. government could pressure to spy on online communications on behalf of the NSA – including IT employees and data center employees.
A trade group representing Google, Amazon, IBM and Microsoft, as well as some of the world’s other largest technology companies, agreed last month, arguing that the new version of the surveillance program “threatens to dramatically expand” the scope of companies and individuals affected. Orders under section 702.
“We’re working on it,” Warner told The Record on Monday. “I am committed to fixing this,” he said, suggesting the best time to do so would be “in the next intelligence bill.”