Jeramie Scott, senior counsel at the Electronic Privacy Information Center and director of the nonprofit’s surveillance oversight project, says LaHood’s admission served as further confirmation that “the FBI’s backdoor searches are ripe for abuse.” He adds that Congress should outlaw the practice and implement comprehensive reforms to “rein in the surveillance state and protect Americans’ privacy and civil liberties.”
Many Republicans, in particular, remain suspicious of the FBI’s power, with some saying Section 702 should expire at the end of the year. The statute’s defenders, meanwhile, consider the authority pivotal to the nation’s defense with regard to both terrorism and cybersecurity threats posed by adversarial nations like China. Many privacy hawks and civil libertarians are focused this year on simply minimizing the FBI’s ability to access intelligence gathered for counterespionage purposes without a warrant. Sources with knowledge of the deliberations tell WIRED that the Biden administration would prefer a clean reauthorization—that is, no changes to the status quo—but add that the odds of that happening are growing increasingly slim.
The FBI is already working with a diminished set of tools, having been stripped during the Trump years of multiple powers once derived from the 9/11-era Patriot Act. These include the ability to obtain “roving” wiretaps that target people instead of particular devices and the power to target Americans suspected of international terrorism ties without formally linking them to a specific organization, known as the Lone Wolf amendment.
While the Republican Party, which now controls the House, historically has held the stronger national security credentials, the reality is that the FBI was in much safer hands with Nancy Pelosi as Speaker of the House and Adam Schiff dictating the House’s intelligence agenda. In 2020, a bipartisan coalition of advocacy groups even accused the pair of covering for the FBI, amid accusations that the bureau was relying on “secret claims of inherent executive power” to engage in surveillance for which they no longer had congressional permission. The Trump era saw a major chasm form between the nation’s spies and members of the populist wing of the Republican Party. After Democrats lost the House in 2022, one of the wing’s leaders, Jim Jordan, took over control of the Judiciary Committee, which has jurisdiction over Section 702.
None of this bodes well for the FBI, the further diminishment of which would not only please civil liberties advocates vying for privacy reform but also Republicans eager to claim a political victory over the so-called deep state.
In an email, LaHood says that as a former prosecutor of terrorism cases, he recognizes the “incredible value” of Section 702, but claims that Americans have “rightfully” lost faith in the FBI. The documented FISA abuses should serve as a wake-up call for the intelligence community, he adds, saying reauthorization of 702 without reforms would be “a non-starter” in the House.
LaHood’s disclosure comes only a day after FBI director Chris Wray announced that the FBI had previously acquired geolocation data belonging to Americans, which he said had been obtained commercially from data brokers, skirting the requirement to obtain a warrant. While ostensibly legal, many privacy lawyers and scholars nevertheless consider such arrangements between the government and data collectors an affront to the Fourth Amendment’s guarantees against unreasonable searches and seizures.
Representative Zoe Lofgren, a Democrat of California, says the revelation underscored an urgent need for Congress to act. “The Constitution is explicit in its requirement that the government must obtain a warrant before conducting a search,” she says. “The failure to do so goes against our Constitution and jeopardizes the civil liberties of Americans.”