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Lawmakers are divided on how to reform foreign surveillance program

JUANA SUMMERS, HOST:

Congress is wrestling over what to do about a key tool for gathering foreign intelligence. The program is set to expire at the end of the year. National security officials are pushing hard for reauthorization, but lawmakers on both sides of the aisle want to make changes. The question is how far those changes should go. NPR's Ryan Lucas reports.

RYAN LUCAS, BYLINE: There is arguably no program that the U.S. government uses to gather foreign intelligence that stirs up as much controversy as what's known as Section 702 of the Foreign Intelligence Surveillance Act. Under this authority, the government can collect emails, text messages and phone calls of foreigners overseas, even when they're talking to Americans, and it doesn't need an individual court order to do so. Administration officials say the program is irreplaceable.

Here's Attorney General Merrick Garland speaking at a news conference last week.

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MERRICK GARLAND: If we don't have 702, we will not be able to protect the American people.

LUCAS: At that same news conference, FBI Director Christopher Wray called the program essential for protecting Americans from foreign terrorism, foreign cyberattacks and foreign spies.

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CHRISTOPHER WRAY: The idea that we would let an indispensable tool like that lapse or, frankly, amend it in a way that gutted its effectiveness, in my view, would be a grave mistake.

LUCAS: But just how to amend Section 702 without gutting its effectiveness is the thorny question now before Congress. Lawmakers have renewed the program twice before - the last time in 2018.

Since then, new government reports have come out documenting FISA violations by the FBI, including it searching 702 databases for information about a sitting U.S. congressman as well as a local political party. That has helped alter the political dynamics around the government's surveillance powers. Now, progressives who have long pushed for more civil liberties protections find themselves allies with far-right Republicans suspicious of the FBI. They have channeled their FISA reforms into a draft bill put forward by the House Judiciary Committee. It would implement sweeping changes, including, most notably, requiring a warrant to search the 702 database for a U.S. person's communications.

Elizabeth Goitein of the Brennan Center for Justice calls it a strong reform bill. She says it would not place any restrictions on the government's ability to collect and review the communications of foreign targets.

ELIZABETH GOITEIN: But it would extend significant civil liberties protections to Americans and rein in warrantless access to Americans' communications under 702 and other surveillance tools.

LUCAS: The Biden administration and many national security officials say a warrant requirement is legally unnecessary and would cripple the FBI's ability to tackle fast-moving threats. The administration and a lot of centrist lawmakers on Capitol Hill support a competing bill put forward by the House Intelligence Committee, also known as HPSCI. It would implement some changes but leave the 702 authority largely intact, and it would not impose a warrant requirement.

GLENN GERSTELL: The HPSCI bill, I think, represents a pretty good balance between the desire to keep the statute in effect and yet, at the same time, recognize that some reforms need to be made in light of experience.

LUCAS: Glenn Gerstell served as the general counsel for the National Security Agency.

GERSTELL: It doesn't include the warrant requirement. But in other respects, it represents, I think, a pretty balanced approach to recognizing we need to have a robust national security tool while, at the same time, making some important privacy protections.

LUCAS: But opponents of the intelligence committee's bill say that it contains language that would expand the government's surveillance powers.

GOITEIN: I mean, this bill is really a wolf in sheep's clothing. It's masquerading as reform, but it actually does far more to expand surveillance than rein it in.

LUCAS: If it sounds like a lot to iron out before the current law expires at the end of the year, that's because it is. Leaders of the House and Senate have agreed instead to pass a short-term extension of the statute through mid-April. That is meant to give lawmakers more time to hammer out a final bill.

Ryan Lucas, NPR News, Washington.

(SOUNDBITE OF ADRIAN YOUNGE SONG, "SITTIN' BY THE RADIO") Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ryan Lucas covers the Justice Department for NPR.