White House Goes To Court, Not Congress, To Renew Warrantless Spy Powers

The Biden Administration has asked a court, rather than Congress, to renew controversial warrantless surveillance powers used by American intelligence and due to expire within weeks. It's a move that is either business as usual or an end-run around spying reforms, depending on who in Washington you believe.

Both may be true.

US Senator Ron Wyden (D-OR) railed at the US Department of Justice's decision to seek a year-long extension of Section 702 of the Foreign Intelligence Surveillance Act, which is set to end in mid-April unless Congress reauthorizes it.

"A broad bipartisan, bicameral coalition agrees that FISA Section 702 should be reauthorized with reforms to protect the rights of Americans," Wyden said in a statement. "Yet rather than seriously engage with congressional reformers, the administration has decided to short-circuit the legislative process and ask the FISA Court for an extra year of surveillance without any reforms at all."

Wyden and other lawmakers have proposed alternative legislation that would allow Section 702 surveillance to continue albeit with strict limits on the government's ability to spy on Americans without first obtaining a warrant. That prosecutors, under the direction of the White House, have gone to court to renew the FISA powers without Congress having a chance yet to fully consider Wyden et al's alternatives has left the senator fuming.

It is utterly ridiculous that the Biden Administration ... would rather risk the long-term future of an important surveillance authority than support a single meaningful reform to protect Americans' rights

"It is utterly ridiculous that the Biden Administration and the Justice Department would rather risk the long-term future of an important surveillance authority than support a single meaningful reform to protect Americans' rights," Wyden thundered.

At issue is Section 702, a contentious amendment to the Foreign Intelligence Surveillance Act, that allows US intelligence agencies to spy on foreigners who are believed to be a threat to national security, or involved in other criminal activities. This is supposed to be limited to intelligence targets overseas, but the reality is that communications of some US persons may be warrantlessly swept up in these dragnets, and this raises the hackles of privacy advocates. 

This concern is not without warrant, as it were. The FBI has abused these surveillance powers plenty of times and used Section 702 to snoop on US elected officials, protesters, campaign donors, and the like. 

Section 702 is set to expire by April 19 unless Congress votes to renew it, and there's been a big push among some lawmakers to change the rules and add some sort of guardrails to limit any future abuses. The section was supposed to run out at the end of last year, though Congress agreed to a four-month extension.

Currently, there are four bills in flight to reauthorize Section 702. Two of them, the Protect Liberty and End Warrantless Surveillance Act and Government Surveillance Reform Act of 2023, include a warrant requirement before investigations.

The White House has fought attempts at Section 702 reform, and the FBI has repeatedly warned that any changes to the surveillance tool will have "devastating" effects on national security and Uncle Sam's ability to prevent cyberattacks.

Business as usual?

The Justice Department and the Office of the Director of National Intelligence have asked the FISA Court – a special highly classified court that oversees requests by officials to use the law's powers – to issue new certifications allowing the program to operate for another year. There is nothing unusual about the administration's ask, according to Josh Geltzer, US National Security Council legal advisor.

"For the executive branch to go to the FISA Court now is business as usual — nothing more, nothing else," Geltzer told The Register. 

"Congress acted in December to extend Section 702, which maintained this critical authority for intelligence collection. The executive branch is now acting on that, in the usual way, at the usual time in the reauthorization cycle. To do anything else would be an anomaly, and indeed an abdication, of our responsibility to use the law Congress extended for the protection of Americans."

Geltzer also reiterated that the White House wants to see lawmakers vote to reauthorize Section 702.

"The executive branch will continue our intensive efforts — underway for over a year now — to work with Congress to sustainably reauthorize this vital authority while enhancing substantially its protections and guardrails," he added.

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But this year is not quite business as usual, according to some. Section 702 may look very different — or cease to exist at all — in the next couple of months. And because of this, privacy and civil liberties advocates are none too happy with the administration's ask of the FISA court.

In December, when Congress temporarily reauthorized Section 702 for four more months, the ACLU and 30 other groups urged Congress to oppose any attempt by the Administration to seek a one-year FISA court certification.

"We agree with Senator Wyden. It's cynical move that's disrespectful of the role of Congress when it comes to reauthorization," Kia Hamadanchy, senior policy counsel at the ACLU, told The Register.

"It's also exactly what we said they would do in December when we pushed for the inclusion of language in the extension that the Administration opposed, which would have limited the ability of the government to seek a yearlong recertification until Congress had acted."

Electronic Frontier Foundation Legal Fellow Brendan Gilligan concurred.

"It's utterly ridiculous for the administration to make such a blatant end-run around Congress to reauthorize this often-abused, unconstitutional warrantless surveillance of Americans," Gilligan told The Register. "Congress must significantly reform the law, or it must sunset — those are the only two options to protect Americans' rights." ®