'Dangerous and irresponsible': FBI Director Wray defends surveillance program in contentious Senate hearing

WASHINGTON – FBI Director Christopher Wray defended a controversial surveillance program Tuesday that he said was critical to fighting cyber crimes and terrorists, even though the program remains hotly contested because of past abuses of spying on Americans.

In a contentious Senate hearing, Wray promised that he’s corrected past issues related to spying, and urged lawmakers to renew the surveillance program ? crucial in the wake of the terrorist attacks Sept. 11, 2001 ? before it expires at the end of the month.

“I think blinding ourselves through either allowing (the program) to lapse or amending it in a way that guts its effectiveness would be reckless at best and dangerous and irresponsible at worst,” Wray told the Senate Judiciary Committee.

But critics led by Sen. Mike Lee, R-Utah, attacked the program for a range of abuses ? FBI agents using it to inquire about real-estate tenants, tracking a relative accused of having an affair, and investigating contributors to political campaigns. Lee refused to accept Wray’s assurances the program has been reformed.

“We have no reason to trust you because you haven’t behaved in a way that is trustworthy,” Lee said.

Why is the fight over 702 urgent?

The program is called 702 because that is the section of the Foreign Intelligence Surveillance Act that authorizes it. The program will expire Dec. 31 unless Congress votes to extend it. Competing legislative proposals aim to fix concerns with the program, but a consensus hasn’t emerged.

The program is designed to monitor foreigners only. But because foreigners contact Americans, they are also swept up in the data, which is collected without a court-ordered warrant. That has raised alarms about civil rights violations.

The program allows intelligence agencies to track communications such as calls, emails and texts between targets. The search doesn’t provide the content of the call or message, but allows agents to track connections between the source and recipient.

Why do intelligence agencies want to keep 702?

Wray testified that the program is crucial to tracking down victims of cybercrime to alert them, or to prevent terror attacks in the U.S. The key to the warrantless queries is the agility to act quickly based on information without waiting for a court-ordered warrant, he said.

“What are we going to say to the family whose loved one’s care was sabotaged when a hospital was taken offline by a foreign adversary and the FBI wasn’t able to stop that cyber attack?” 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 its ability under 702 to actually look at key information already sitting in our holdings,” Wray added.

The program has been under intense scrutiny since the Justice Department's inspector general, Michael Horowitz, issued a scathing report in December 2019 that found the federal surveillance process was “not used appropriately."

Wray, who arrived at the FBI after the conduct portrayed in the report, overhauled the FBI’s training program for agents and lawyers to ensure future surveillance applications are complete and properly vetted.

Wray told senators Tuesday he adopted 40 reforms after the inspector general’s report, including setting up an Office of Internal Auditing. The FISA court has since found a 98% compliance rate and that reforms are “having the desired effect,” Wray said.

“We are proud of the progress we’ve made so far,” Wray said. “We are determined to work with Congress to get it right.”

Why are critics skeptical of 702?

Critics contend the program violates the Fourth Amendment right against unreasonable searches. Wray said courts have consistently upheld the program as constitutional. But Lee argued that was because people don’t typically know their communications have been searched.

A September report by the government’s Privacy and Civil Liberties Oversight Board found tens of thousands of queries related to civil unrest from November 2020 to December 2021. For example, the report found 141 searches for communications of racial justice protesters, 1,600 Americans traveling to or returning from a foreign country, and 2,000 for information about people at an athletic event.

The report disclosed two intentional searches, including one of a potential tenant and one involving subjects of online dating, Lee said. A Foreign Intelligence Surveillance Court opinion in April 2022 noted that searches included one about 19,000 donors to a congressional campaign, Lee said. And a June 2022 court opinion said four queries used the last names of a U.S. senator and a state senator, Lee said.

Wray replied that all of the examples involved conduct before his reforms took place. But Lee was unimpressed an later accused the FBI of ignoring court restrictions.

“You have a lot of gall sir,” Lee said. “This is disgraceful.”

What are the proposals for overhauling 702?

The importance of the program ? and concerns about it ? has spurred broad debate about whether to extend it and how. Conservatives and progressives who share concerns about it being too intrusive have tried to find common ground about how the program should work.

The top members of the Senate Intelligence Committee – Sens. Mark Warner, D-Va., and Marco Rubio, R-Fla. – supported legislation that would prohibit searches for information solely designed to find evidence of criminal activity. But privacy advocates say that would encompass a small fraction of queries.

The FBI conducted 204,000 queries about U.S. people from December 2021 and November 2022, but only 16 were for a “crime-only purpose,” according to the most recent statistics available from the Director of National Intelligence.

Rep. Jim Jordan, R-Ohio, chairman of the House Judiciary Committee, cited the statistic as a reason Republicans would oppose extending the program without changes. The committee is scheduled to vote Wednesday on its version of a 702 overhaul, which resulted from negotiations between conservatives such as Jordan and Rep. Andy Biggs, R-Ariz., and progressives such as Reps. Jerry Nadler, D-N.Y., and Pramila Jayapal, D-Wash.

Elizabeth Goitein, an expert on national security at New York University’s Brennan Center for Justice, said on social media the House Judiciary version would offer meaningful reform. The bill would “close the backdoor search loophole by requiring a warrant” for queries about U.S. people. In contrast, legislation from the Senate and House intelligence committees would restrict less than 0.5% of queries, she said.

“No more using 702 to gain warrantless access to Americans’ communications!” Goitein said.

This article originally appeared on USA TODAY: FBI chief urges extension of surveillance program critics don't trust