Administration to Congress: Don’t let surveillance authority expire

The administration is urging lawmakers to avoid letting a controversial surveillance program expire as Congress nears an end-of-the-year deadline without a path forward.

The Justice Department and the Office of the Director of National Intelligence sent a letter to Senate Intelligence Committee Chair Mark Warner (D-Va.) and Sens. John Cornyn (R-Texas) and Lindsey Graham (R-S.C.) on Monday night, touting the importance of the surveillance authority, known as Section 702, including for use against organizations like Hamas.

“Time is running out, and there remains an acute need to reauthorize this critical authority,” Assistant Attorney General Carlos Uriarte and Assistant Director of National Intelligence Matthew Rhoades wrote in the letter, a copy of which was obtained by POLITICO.

“There is no way to replicate Section 702’s speed, reliability, specificity, and insight, and every day it helps protect Americans from a host of new and emerging threats,” they added.

The letter comes as Congress has less than two weeks left on its calendar before leaving for the year. It is without a unified path toward reauthorizing Section 702, which is meant to target foreigners abroad but has run into controversy because of its ability to sweep in Americans.

Leadership is expected to attach a short-term extension until Feb. 2 to a sweeping defense policy bill, three people familiar with the matter previously told POLITICO. But they cautioned that given opposition within some corners, in particular in the House GOP conference, the surveillance extension is at risk of being taken out until the defense bill text is finalized.

Some privacy advocates, and their allies on Capitol Hill, have argued that an extension isn’t needed before the end of the year because the program was recertified in April 2023 for a full year. But intelligence community allies, and even some lawmakers proposing sweeping overhauls to the bill, warn unless Congress acts before the end of the year, the surveillance authority would be on risky ground and at risk of a lawsuit.

And both the House Judiciary Committee and House Intelligence Committee will vote on their own long-term reauthorization bills this week — the Judiciary Committee on Wednesday and the Intelligence Committee on Thursday.

And while the two bills have areas of overlap — including on new auditing and reporting requirements, new penalties for surveillance violations and changes to the broader Foreign Intelligence Surveillance Act (FISA) and the surveillance court — the two panels remain at odds over when a warrant should be required for searching data collected under the 702 surveillance authority for Americans’ information.

The Intelligence Committee bill is expected to require a warrant for so-called “evidence of a crime” searches, which don’t involve foreign intelligence and are a small slice of searches. The Judiciary bill would require a warrant for most searches involving an American, though it would have an exception including for “emergency situations,” if an individual has consented to the search, or some cybersecurity-related searches.

The administration, in its letter on Monday, warned that a warrant requirement would “severely undercut” the ability to use the surveillance authority and presents “grave concerns.”

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