‘A marriage of convenience’: Why the pushback against a key spy program could cave in on progressives

An unlikely coalition of progressive and hard-right conservative lawmakers came together this year to push for overhauling a powerful government spying authority. But as the time approaches to take action, cracks are starting to show.

Republicans and Democrats who have backed each other's ideas in hearings and collaborated on working groups are starting to stake out different positions about what reforms are really needed for the program, which allows government spies to snoop on the emails and other electronic communications of foreigners abroad.

The “alliance between the far-right and the far-left is a marriage of convenience,” one congressional aide involved in the reauthorization discussions said. The aide, who was granted anonymity to speak candidly about sensitive internal debates, added that the two camps “have major policy differences when talking specifics.”

Lawmakers have until the year-end expiration of the electronic surveillance power — Section 702 of the Foreign Intelligence Surveillance Act — to decide whether to renew it and with what changes.

It’s expected to get renewed in some form, but splits along partisan lines could sap momentum for some of the most ambitious changes privacy hawks are pursuing.

That’s good news for the Biden administration.

President Joe Biden and his team have been pushing to get Section 702 renewed with as few added restrictions as possible, arguing its wide scope is essential for protecting national security. But they’ve had difficulty making that argument in the face of government reports and court rulings showing the FBI misused data collected under 702 to spy on Americans.

Any fracturing inside Congress works in the administration’s favor. And progressives are starting to worry that in the push to find consensus, they’ll lose out on what they see as a key reform: requiring the FBI to obtain warrants to search the database of collected emails, text messages and the like for information on Americans.

Rep.Zoe Lofgren (D-Calif.), a progressive privacy advocate, expressed wariness that the coalition between left and right would prove strong enough to push through major reforms, like the warrant requirement.

“In the past, even though we've had sort of a left-right consensus on 702 reform, the national security forces always managed to derail the effort,” Lofgren said. “The question is, Will that happen again? And I don't know the answer to that.”

An optimistic alliance

Through multiple congressional hearings this year — including two in the famously polarized House Judiciary Committee — Republicans and Democrats have found common cause in blasting the FBI and Justice Department for abusing the FISA program.

The uncharacteristically strident calls for reform from the right — traditionally the pro-law enforcement party — have buoyed privacy-oriented lawmakers’ hopes that they finally have the support needed to pass significant changes to the 9/11-era spy program.

In particular, privacy advocates have been hoping to rally lawmakers to close what they consider a major loophole in the program: the fact that the government does not need a warrant to query the database for information on Americans.

“I will only support the reauthorization of Section 702 if there are significant reforms. And that means, first and foremost, addressing the backdoor warrantless surveillance of Americans,” Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee, said in an emailed statement.

The argument for the warrant has been buoyed by the release of opinions from a special court overseeing the program, which found FBI personnel misused the database to search for the names of Jan. 6 rioters, political donors to a congressional campaign and individuals who demonstrated following the murder of George Floyd.

Those searches, and others like them, violated internal FBI rules requiring that a suspect must have a likely tie to foreign intelligence information to be searched in the database.

The Justice Department and the FBI have recently cut down on those improper searches by instituting stricter rules about when analysts can access the database. They have also invited lawmakers to codify those changes into law.

But the disclosures were enough to prompt a broad cross-section of lawmakers to express interest in the idea of a warrant — or even something harsher — throughout the year.

“How about if we just get the FBI out of the business altogether?” Rep. Jim Jordan (R-Ohio), chair of the House Judiciary Committee, asked witnesses during a hearing on FISA earlier this year.

A White House in self-defense mode

The unusually strong alliance between right and left — and the specter of major changes that come with it — has rattled the Biden administration in recent months.

In a sign of just how concerned it is about preserving the program as is, the White House disclosed for the first time in February and March that it uses Section 702 to combata wide spectrum of threats, including fentanyl trafficking, cyberattacks and weapons proliferation. 

It has also released new statistics about the value of the program to the intelligence community and tapped officials in a swath of federal agencies to deliver speeches outlining how heavily their jobs rely on the surveillance tool.

The full-court press appears to have swayed lawmakers away from the idea of quashing the program entirely, a prospect that unnerved the White House when the debate over the spy tool began in earnest this spring.

But the White House has continued to argue that several changes championed by civil liberties groups — and the warrant requirement in particular — would kneecap one of its most valuable spying programs.

An independent White House intelligence panel concluded in July that cutting or severely restricting the program to better protect Americans’ privacy would amount to “one of the worst intelligence failures of our time.”

Conservatives chart a separate course on FISA

But Republican support for progressive priorities may not be as robust as privacy advocates hope or as the White House fears.

Conservatives are quietly beginning to zero in on a different set of priorities around FISA reform.

Republican skeptics of the law have grown increasingly concerned about a separate portion of the Foreign Intelligence Surveillance Act known as traditional or Title 1 FISA. And while that section of the law isn’t technically up for renewal this year, they see the deadline for Section 702 as a vehicle to push through changes to it.

Traditional FISA involves the use of court orders to surveil individuals physically inside the United States. Conservatives allege that the Justice Department has abused it to unlawfully spy on allies of former President Donald Trump — and in particular, former Trump campaign adviser Carter Page.

The DOJ used FISA to obtain court orders to surveil Page, orders an internal investigation found were riddled with errors. Hard-right conservatives point to the investigation as evidence of politicization within the Justice Department.

“The Carter Page investigation is just one example of the FBI abusing FISA to surveil American citizens,” Rep. Tom Tiffany (R-Wis.), a member of the House Judiciary Committee, said in a statement. “I will be allowing FISA to sunset if we do not see significant reforms in the agency.”

Conservative fixation on problems in Title I of FISA will ultimately eat away at some of the momentum behind the warrant requirement progressives have proposed, said Adam Klein, former chair of the Privacy and Civil Liberties Oversight Board.

Though some conservative have entertained the warrant requirement idea thus far, it “wouldn't actually solve the problems animating most members of the Republican Conference," argued Klein, who has met with congressional staff about FISA reform.

Changes to FISA that address only Section 702 “do nothing for the right,” argued Stewart Baker, a former NSA general counsel who has met with lawmakers about renewing the program.

Instead, he said, conservatives want to make changes that are “aimed at the perception of partisanship” within the FBI and Justice Department. That could mean injunctions on domestic disinformation work by the intelligence community, stiffer penalties to discourage politically motivated leaks or limitations on how former intelligence officials can use their access to classified information to wade into political debates.

A harder road for progressives

The differences between progressives and conservatives are likely to sharpen closer to the end of the year, argued Baker and Klein, when lawmakers on either side of the aisle have had more time to study up on the two portions of the notoriously arcane spy program.

As that happens, far-right lawmakers may find they have more support for changes to Title I of FISA from national security hawks in both parties and even the White House, both of which could view those fixes as more palatable than the warrant requirement.

A second congressional aide said that early support for the warrant requirement has been aided by outside civil liberties groups — and that lawmakers who oppose the idea believe they have vastly understated the national security costs of the warrant, while overstating its privacy harms.

“These outside groups don't have first-hand experience with the program,” said the aide, who did not name any of the groups. “So, they're operating off of, you know, second-, third- or fourth-degree information that can get lost in translation.”

Privacy groups strongly objected to those characterizations.

“All of our factual information comes from the government itself, along with other official sources such as FISA court opinions and the PCLOB report,” said Liza Goitein, senior director of the Liberty & National Security Program at the Brennan Center for Justice.

“The Constitution doesn’t allow the government to conduct warrantless searches of Americans simply because spy agencies find that easier than getting a judge’s approval,” added Patrick Toomey, deputy director of the ACLU’s National Security Project.

A special federal court charged with overseeing the 702 program must certify on an annual basis that it is compliant with the Fourth Amendment. It has found that the government does not need to acquire an individualized warrant because U.S. data found within the repository is retrieved only as a consequence of collecting communications from targeted foreigners.

Civil liberties groups and national security-focused lawmakers disagree on whether that degree of judicial oversight offers sufficient protection to Americans. But it's an argument national security hawks are betting they can win as lawmakers start thinking more seriously about the program.

There are “valid and legal reasons” why the FBI should be able to access the 702 database without a warrant, the second aide argued.

Congressional tussles ahead

When Congress returns from the August recess, lawmakers will have just four months to hash out the details of a package to renew FISA.

Much of that time will be eaten up by negotiations over funding to avoid a possible government shutdown at the end of September, disputes over a new aid package for Ukraine and ironing out the annual defense bills.

But civil liberties groups will also have a last chance to push for major changes to the 702 program — and they could receive a major bump from the Privacy and Civil Liberties Oversight Board, which is expected to submit a report on Section 702 later this fall.

Because the board’s mandate includes privacy protection, there is a chance it offers more support for the idea of a general warrant requirement, which the president’s intelligence panel dismissed in July as both unnecessary and counterproductive.

But whether that is enough to sway Republicans remains a different question.

The changes that would be “viscerally satisfying” to left and right aren’t the same, argued Klein, the former PCLOB chair.

“The bloodless, technical fixes to strengthen compliance and transparency are important and have wide support, but it will take more to fully address the loss of trust among conservatives," he said.