Russian meddling in the 2016 presidential race wasn’t the only contentious topic FBI Director James Comey addressed on Capitol Hill this week.
In Senate Judiciary Committee testimony Wednesday, Comey pushed for reauthorization of a surveillance provision the intelligence community views as a vital counterterrorism tool — despite a recent signal from a key House member suggesting reform will be necessary before the provision is extended past the end of 2017.
At issue is Section 702 of the Foreign Intelligence Surveillance Act, which allows U.S. intelligence to target for electronic surveillance foreign individuals reasonably believed to be located outside of the country.
“This is a tool that is essential to the safety of this country,” Comey told the panel. “If it goes away, we will be less safe as a country.”
Most in Congress involved in the issue are in favor of reauthorizing the provision. But some are concerned about the privacy of Americans whose communications get swept up in the program, and law enforcement’s warrantless access to the database. They are pushing to reform the program and limit the possibility of abuse.
Comey defended collection under Section 702, saying that the only people who get access to it are those who have been trained correctly.
“The information that is in the 702 database has been lawfully collected, carefully overseen and checked, and our use of it is also carefully overseen and checked,” he argued.
Privacy and civil liberties advocates have for years called for a change to the law, and now appear to have an ally in the form of House Judiciary Committee Chairman Bob Goodlatte. The Virginia Republican predicted Tuesday that changes will have to be made to the provision.
“There’s broad bipartisan support for reform,” Goodlatte said.
At Wednesday’s committee hearing, Sen. Mike Lee (R-Utah) raised concerns about the FBI’s ability to collect the content of communications from Americans connected to an individual who may be targeted for a national security investigation.
“The fact that these communications were intercepted without any showing of wrongdoing on the part of the U.S. person, without necessarily showing that U.S. person had anything to do with the national security investigation at issue, does that cause you concern that that could involve almost a back doorway of going after communications by U.S. persons in which they have a reasonably expectation of privacy?” Lee asked.
Comey said it does not cause him concern because the information is lawfully gathered and protected in the database. “I don’t know how we would operate otherwise,” he said.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said that while “concerns persist” about the FBI’s queries of data and how they impact civil liberties, the law has been “proven to be highly effective in helping to protect the United States and our allies.” He argued the Privacy and Civil Liberties Oversight Board and the Foreign Intelligence Surveillance Court have found the program constitutional.
Sen. Dianne Feinstein (D-Calif.), the top Democrat on the panel and a member of the Senate Intelligence Committee, said Section 702 is “important” and asked Comey to explain to the public how the FBI handles its search of U.S. person identifiers in its database “to avoid the charge which may bring down 702.”
Sen. John Cornyn (R-Texas), also a member of the Intelligence Committee, likewise sought to defend the program. “I think the public needs to know that there are multiple oversight layers,” Cornyn said. The FISA court, congressional oversight and internal oversight, protect “Americans’ privacy rights while targeting terrorists and people who are trying to kill us.”