FBI Director Christopher Wray called Tuesday for the reauthorization of a U.S. government surveillance tool set to expire at the end of the year, warning Senate lawmakers that there would be “devastating” consequences for public safety if the program is allowed to lapse.
At issue is Section 702 of the Foreign Intelligence Surveillance Act, which allows the U.S. government to collect without a warrant the communications of targeted foreigners outside the United States. Law enforcement and intelligence officials see the program as vital to preventing terror attacks, cyber intrusions, espionage and other foreign threats.
The program, created in the aftermath of the Sept. 11, 2001, attacks, is due to expire at the end of this month unless Congress votes to reauthorize it. But Republican and Democratic lawmakers alike have balked at renewing the program in its current form, recommending a slew of reforms in competing legislative proposals that are aimed at better safeguarding civil liberties and that are jockeying for support in the coming weeks.
The thorny path to reauthorization was laid bare during Tuesday’s hearing, when lawmakers from both parties questioned Wray, at times aggressively, over periodic misuse of the program by FBI employees seeking out information about Americans. Though the program enables surveillance only of foreigners located outside the U.S, it also can capture the communications of American citizens and others in the U.S. when those people are in contact with those targeted foreigners.
Sen. Mike Lee, a Utah Republican, said that during his 13 years on the committee, he’d pressed multiple FBI directors about civil liberties violations associated with the surveillance program and had repeatedly been given false reassurances about the reforms being put in place.
“Every darn one of them has told me the same thing: ‘Don’t worry about it, we’ve got this taken care of, we’ve got new procedures, it’s going to be different now,”‘ Lee said. “It’s never different. You haven’t changed.”
He added, “We have no reason to trust you because you haven’t behaved in a manner that is trustworthy.”
The fact that Wray devoted a significant portion of his prepared remarks to the Senate Judiciary Committee to the issue underscores its importance to the FBI, particularly at a time when the Israel-Hamas war has raised heightened concern about the possibility of extremist violence on U.S. soil and contributed to threats being at a “whole other level” since the Oct. 7 attacks.
“I think blinding us, through either allowing 702 to lapse or amending it in a way that guts its effectiveness, would be reckless at best and dangerous and irresponsible at worst,” Wray said.
Calling the authority indispensable, he told the committee, “702 allows us to stay a step ahead of foreign actors located outside the United States who pose a threat to national security. And the expiration of our 702 authorities would be devastating to the FBI’s ability to protect Americans from those threats.”
Wray, who took over as director in 2017, said that what made the current climate unique is that “so many of the threats are all elevated at the same time.”
But the 702 program has come under scrutiny in the last year following revelations that FBI analysts improperly searched the database of intelligence, including for information about people tied to the Jan. 6, 2021, riot at the U.S. Capitol and the racial justice protests of 2020.
Those concerns have brought together Democrats who are longtime vocal champions of civil liberties, including Sen. Ron Wyden of Oregon, with Republican supporters of former President Donald Trump who are still angry over surveillance missteps made during the Russia investigation of 2016.
Wray and the White House have balked at the idea that the FBI should be required to get a warrant before searching the intelligence database for information about Americans and others inside the U.S.
The FBI director said such a requirement would be both legally unnecessary and would hold up the bureau in trying to disrupt fast-moving national security threats.
If a warrant requirement is the path chosen, Wray said, “What if there were a terrorist attack that we had a shot to prevent, but couldn’t take it, because the FBI was deprived of the ability under 702 to look at key information already sitting in our holdings?”
Sen. Chris Coons, a Delaware Democrat who said he had not yet made up his mind on how he’d vote, asked Wray whether a more narrow reform advanced by two of his Senate colleagues might be more acceptable.
He said Democratic Sen. Mark Warner and Republican Sen. Marco Rubio, the leaders of the Senate intelligence committee, had proposed a bill that would prohibit database queries on U.S. citizens that are designed to find evidence of a crime without a court order while still allowing warrantless searches for the purpose of finding foreign intelligence information.
Wray responded that that proposal might provide a viable path forward, but noted that searches of the database for the sole purpose of finding evidence of a crime were very rare.
Illinois Sen. Dick Durbin, the Democratic chairman of the Senate Judiciary Committee, summed up the issue by telling Wray that though “there was no question” that Section 702 was a “critical tool for collecting foreign intelligence” he would encourage significant reforms to protect the privacy of “innocent Americans.”