Former National Security Agency general counsel Glenn Gerstell is one of dozens of retired intelligence officials trying to protect Section 702.
Section 702 is a surveillance program that the NSA, CIA, and FBI are working more urgently than ever to keep intact as lawmakers weigh reauthorization and reforms. And some are skeptical: "A law designed to provide tools to collect foreign intelligence and prevent terrorist attacks has been warped into a domestic spy tool used to target Americans," Rep. Andy Biggs said last week in a markup of a House bill to reform Section 702.
Because of America's dominance of the telecommunications industry, Section 702 allows the NSA to swiftly gather emails, text messages, and other communications on foreign targets overseas and without warrants.
"It's the single most important operational statute for America's spy agency," said Gerstell.
Two intelligence officers told Scripps News that the resulting database saves them time, billions of dollars, and their own lives as they conduct operations. It has been used recently to gain insight into Hamas, and to uncover Russia's murder of civilians in Ukraine and the forced relocation of children to Russia. It has also been used to catch terrorists, foreign cyberattacks, threats to U.S. troops overseas, and adversaries trying to send operatives to the U.S. to recruit spies.
But 702 has been conflated with other authorities used to probe former President Trump's campaign. Distrust deepened after mandatory disclosures revealed that the FBI misused the 702 database to search for foreign ties among Jan. 6 rioters, as well as Black Lives Matter protesters, lawmakers, and others. The FBI has made reforms, including better training and an internal auditing office, but some lawmakers — on the right and left — are not swayed.
"We have absolutely no reason to trust you," Rep. Mike Lee told FBI Director Chris Wray in a House hearing. "Because you haven't behaved in a manner that's trustworthy. You can't even, as we sit here, tell me that people who intentionally knowingly deliberately violated the civil rights of American citizens that they were fired, or that they had their security clearance stripped."
Two bills in the House of Representatives competed on lines of privacy and security. One is a bill from the House's Judiciary Committee that would narrow 702's use and require all agencies to obtain court-issued warrants that the intelligence community says will slow down operations and endanger Americans.
A second bill, from the House's Intelligence Committee, and which is supported by the White House, would restrain the FBI but expand surveillance. Opponents say the bill potentially forces hotels, coffee shops, libraries and wi-fi technicians to become "surrogate spies."
The rift comes as Russia and China have been keeping track of America's surveillance tools.
"I'm sure that Vladimir Putin is sitting there thinking, 'Gosh, I hope a political dysfunction in America and Congress, it prevents 702 from being enacted at all or extended at all, or even if it is that it's on terms that make it operationally ineffective.' They know — our adversaries Russia, China, North Korea know how valuable 702 is into uncovering their secrets and what their plans are," said Gerstell.
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