Set to expire at the end of this year absent congressional action, Section 702 authorizes the U.S. intelligence community to collect the texts, emails and other digital communications of foreigners located abroad who correspond using the platforms of American tech companies, like Microsoft and Google.
While skeptics of major reforms are seizing on the board’s divisions to cast doubt on its newest report, supporters protest that the Republican members’ sharp critiques are political bluster.
The split between the majority and the minority is “rhetoric more than it actually is substance,” Travis LeBlanc, one of the group’s three Democrats, said in an interview.
The three Democrats also repeatedly downplayed the divisions with their Republican counterparts at Thursday’s event. “The fact that there isn’t maybe one unanimous answer that everyone agrees on doesn’t mean that the substance and analysis of one side is flawed,” LeBlanc said in the interview. “It’s just a recognition that it’s a very complex issue.”
The fissures within the board started to catch attention on Wednesday, when the group shared its report on Section 702 with Congress and the White House.
Unlike the watchdog’s prior review of the foreign spy tool, in 2014, the report did not present consensus recommendations about how to reform it. Instead, the 300-page report included a 55-page annex in which DiZinno and Williams criticized many of the report’s findings about the severity of the risks that the foreign eavesdropping program presents to Americans.
Knowledge of the report’s impending release sent White House officials and Congressional staffers into a frenzy to shape how the report’s split opinion should be viewed: as a ringing endorsement for major reforms — or simply another sign of how divisive those proposals are.
“It is a deeply fractured report, divided down to the word, and it really is two reports, two full reports, in one,” a senior Biden administration official, granted anonymity as a condition of providing a briefing on the law, told reporters in a Wednesday afternoon call.
At the heart of the current controversy is the three Democrats’ recommendation that U.S. spies and law enforcement officers be required to get approval from a special surveillance court before querying the trove of data collected under the program for information on Americans.
When U.S. citizens swap messages with targeted foreigners, their communications are vacuumed into the 702 database, too.
A bipartisan coalition of civil liberties-oriented Democrats and conservative Republicans who believe the U.S. intelligence community has become politicized has argued that those queries represent an unconstitutional “backdoor” around Americans’ privacy rights — an assessment the privacy watchdog’s three Democrats are now endorsing.
“The board believes that the most critical safeguard for Americans’ privacy rights is to require individualized and particularized judicial review for all U.S. person query terms,” Sharon Bradford Franklin, the chair of the board, said Thursday at the event.
That proposal far and away represents the White House’s biggest gripe with the report — and is the reason it so heavily emphasized the watchdog’s lack of consensus. The two Republicans strenuously objected to the idea of court approval for those searches.
“U.S. courts have repeatedly held that the requirement is not legally necessary and the Intelligence Community has unanimously made clear that it would be operationally infeasible and would harm our national security,” Matt Olsen, assistant attorney general for national security, said in an email.
The board’s five members did agree that Section 702 was critical to U.S. national security and should be reauthorized with new privacy guardrails. They could not agree on what those fixes should be — punting the hard work back to Congress.
“It was clearly an antagonistic report. But that’s fine,” said Rep. Jim Himes (D-Conn.). “I kind of think that kind of reflects the debate we’ll have inside the Congress. The difference of course is that we need to arrive at a collective answer.”
Jordain Carney contributed to this report.