Members of the President's Intelligence Advisory Board, and the associated Intelligence Oversight Board, warned in their report that a failure by Congress to reauthorize Section 702 amid debates over instances of its misuse would constitute a serious blow to the nation's security.
"The cost of failure is real," the board wrote. "If Congress fails to reauthorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time."
Rather than let the law "sunset" on Dec. 31, they instead recommended changes be made to prevent "incidents of noncompliance" in which U.S. law enforcement agencies have used the extensive warrantless spying powers granted by the law on American citizens, rather than only on foreign nationals as required under its provisions.
Section 702 of the Foreign Intelligence Surveillance Act Amendments, first passed 15 years ago in response to the Sept. 11, 2001, terrorist attacks, permits the government to conduct "targeted surveillance" of emails, text messages and other communications of "foreign persons located outside the United States" with the "compelled assistance" of Internet service providers and phone companies.
Since then, authorities claim the capabilities have been instrumental in preventing several "potential high-impact events," such as averting the 2009 attempted bombing of the New York City subway and an attempted vehicle bombing at a Christmas tree lighting ceremony in Portland, Ore., in 2010, as well as cyber attacks against "critical U.S. infrastructure."
Civil liberties groups and some U.S. lawmakers from both parties, however, have steadfastly opposed the law since its creation, claiming the FBI, the National Security Agency and other law enforcement bodies regularly use it as an illegal domestic surveillance tool.
The FBI says it conducted more than 200,000 warrantless searches of Americans' communications under Section 702 powers in 2022 -- down from millions of searches in previous years -- authorized under rulings made by the secret FISA court allowing the FBI and other agencies to conduct searches of their massive Section 702 data files for the purpose of finding Americans' communications.
Such "backdoor searches" amount to warrantless surveillance of Americans, according to the American Civil Liberties Union.
"There is no question that if the government wanted to obtain our communications directly, they would need to get a warrant," the ACLU said in a statement issued this month. "The circumvention of this requirement through backdoor searches is incompatible with the protections provided to us by the U.S. Constitution."
The White House report issued Monday acknowledges several instances of authorities using Section 702 to gather warrantless intelligence on "U.S. persons," although noting the Department of Justice has only identified "three incidents of intentional misconduct from among millions of FBI queries of Section 702 information."
In order to address the misuse, the panel recommended a series of changes meant to increase confidence in the law, including establishing "a common standard for U.S. person queries across all agencies" and improving the FBI's internal compliance regime.
Still, the law's reauthorization is likely to face a skeptical reception in Congress.
Rep. Mike Turner, R-Ohio, chairman of the House Intelligence Committee, said in March that while the reauthorization of Section 702 is a top priority, "unfortunately, there have been significant and egregious abuses of Section 702 that have eroded the trust of the American people, putting FISA's reauthorization at risk."
Corrections, he said, "must be made to protect American citizens' constitutional rights."
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