Privacy-minded Senate Judiciary members rehashed their support for adding a warrant requirement to a powerful surveillance authority at a hearing Wednesday, as lawmakers face an April deadline to reauthorize the program.
Lawmakers during the last reauthorization cycle were bitterly split over the extent of privacy protections for Americans in Section 702 of the Foreign Intelligence Surveillance Act, which allows the U.S. government to collect digital communications of foreigners located outside the country.
And remarks from senators on Wednesday made clear the issue would be front and center once again, the latest in a long-running debate over whether the communications of Americans swept up under Section 702 should be subjected to a warrant requirement.
The program is touted by national security experts who say it allows the U.S. government to disrupt threats. But it’s been the subject of heavy criticism because it allows the FBI to search through data without a warrant, using information such as an email address.
Illinois Sen. Richard J. Durbin, the top Democrat on the panel, said there is no doubt that Section 702 is valuable. “However, for years, the government has used it as a domestic spying tool to collect millions, maybe billions, of Americans’ private communications,” Durbin said.
Sen. Josh Hawley, R-Mo., said the program acts as a dragnet, picking up huge amounts of information. “Why shouldn’t we say — ‘Actually, yes, when you go to this massive database and ask about a U.S. person, that’s a Fourth Amendment event that requires some process, some scrutiny,’” Hawley said.
Lawmakers reauthorized the program last Congress. The final bill made some changes aimed at making sure the government could not misuse the authority, but it did not include a warrant requirement regarding the searching of Americans’ information.
Intelligence-focused lawmakers have praised the changes, while privacy advocates say that reauthorization measure actually expanded the scope of Section 702.
Sen. Chris Coons, D-Del., used the hearing, which did not include any Trump administration officials, to highlight a dearth of messaging from the White House regarding where it stands on the reauthorization of Section 702.
Earlier this Congress, lawmakers questioned several Trump nominees on their thoughts about Section 702 as they went through the confirmation process. CIA Director John Ratcliffe, for example, described the Foreign Intelligence Surveillance Act, and particularly Section 702, as an “indispensable national security tool.”
But unlike the Biden administration, the Trump White House has not rolled out a wide-scale public campaign about the program’s reauthorization.
Coons said he had hoped to hear from witnesses about whether the reforms passed last Congress were effective. But he could not because no government officials were testifying before the committee Wednesday.
“We are three months from the expiration of Section 702 and the Trump administration, as best as I can discern, still has no official position on it. That is stunning,” Coons said.
“I think it’s unacceptable that, with just 90 days, the administration doesn’t know how it thinks about the program and has no one here to explain or defend it. If it’s working well, why can’t you tell us?” Coons questioned.
The House Judiciary Committee held a hearing on Section 702 reauthorization last month, when members renewed their push to add a warrant requirement.
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