The Director of the FBI defended the continued use of a controversial spying authority that expires at the end of the year.
But, in an appearance on Capitol Hill Thursday, Christopher Wray was met with demands that the Bureau act more transparently about how it uses spying tools before any authorities are extended.
Section 702 of the FISA Amendments Act sunsets in three weeks. The statute’s expiration could curtail the ability of intelligence and law enforcement agencies to conduct powerful forms of surveillance.
“I would implore the committee and the congress not to begin rebuilding the wall that existed before 9/11,” Wray told members of the House Judiciary Committee during Thursday’s oversight hearing.
Constitutional concerns surround Section 702, following the revelations of former NSA contractor Edward Snowden.
In 2013, Snowden disclosed that programs like PRISM and activities such as “upstream” collection — both justified under Section 702 for the purpose of foreign surveillance — result in the seizure of massive amounts of data belonging to American citizens.
Snowden further revealed that government investigators can search those databases, rife with Americans’ communications, without a warrant.
That activity, known as the “backdoor search” loophole, has prompted lawmakers to call for changes to 702 that ensure US citizens aren’t subject to warrantless government searches.
Reauthorization legislation unveiled by the committee in October purportedly works to create a distinction between counter-terror and domestic crime investigation. It would require agents to obtain a warrant before reading the contents of Americans’ communications sucked up into FISA databases.
“We’ve protected the FBI’s ability to access the database for the purpose of query,” the committee’s Chairman Bob Goodlatte (R-Va.) said. “But then if you’re going to take it further and read the contents of that email…if you’re solving a domestic crime, then I think you need to respect the civil liberties of American citizens and get a warrant.”
At least one Republican lawmaker on the panel said he would withhold his support for extending Section 702 until the FBI is more open with the committee about how it uses the spying powers on American citizens.
“So you have this database that’s supposed to go after the bad guys,” Rep. Ted Poe (R-Texas) said during Thursday’s hearing. “But inadvertently you pick up all this information on Americans who have nothing to do with terrorists.”
Poe wanted to know how many times the FBI has searched FISA databases for information belonging to US citizens. Wray alleged that he didn’t have that answer.
“I hope you can provide us that information before we reauthorize FISA, otherwise I’m going to vote against FISA,” Poe threatened, receiving the backing of the committee’s chairman.
“This is a reasonable request by the gentleman from Texas,” Rep. Goodlatte said. “It has been made in varying forms by this committee in a bipartisan way in the past, and we have not yet received the answers to those questions.”
“We have a very nice SCIF where this can all be discussed in a classified setting,” Goodlatte added.
The committee, however, is unlikely to receive a satisfactory answer from the FBI. Senators have long been requesting similar information about the 702 database from intelligence agencies.
Specifically, requests to know how many Americans are subject to inadvertent collection under 702 have been rebuffed. Responses to these inquiries have also been less than forthcoming.
During a Senate Intelligence Committee hearing in June, Director of National Intelligence Dan Coates claimed under oath that it would be “infeasible to generate an exact, accurate, meaningful, and responsive methodology that can count how often a US person’s communications may be incidentally collected under Section 702.”
Lawmakers have previously used the 2013 Snowden leaks to bring about surveillance reforms.
In 2015, the looming expiration of a separate authority — Section 215 of the USA Patriot Act — compelled lawmakers to enact reforms on the government’s bulk telephony metadata collection program.
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