A new report from the Office of the Director of National Intelligence indicated that fewer people were subject to warrantless searches through Section 702 in 2022.
Section 702 allows “targeted” intelligence gathering of communications made outside the United States. Officials say these communications don’t target Americans, but opponents say Americans are often involved in the communications.
The data found that these searches decreased from 2.96 million from December 2020 through November 2021 to nearly 119,000 from December 2021 through November 2022.
Section 702 searches do not require a warrant, and thus do not have to be approved by a judge. Intelligence Community officials say seeking a warrant would hamper their ability to conduct counterintelligence.
“A warrant requirement would hamper the speed and efficiency of operations, and impair the IC's ability to identify and prevent threats to America,” the DNI’s office said in a presentation.“The IC often runs U.S. person queries to identify and protect potential victims of terrorist or cyber attacks, and also as the first step in evaluating and detecting potential threats to the homeland. In these situations, the IC may not have probable cause to believe the U.S. person is a foreign power or agent of a foreign power.”
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Section 702 is up for renewal in December and lawmakers have expressed skepticism over its renewal. FBI Director Christopher Wray defended the spying program to lawmakers last week.
“On China, in a world without 702, the FBI would have lost one of its most powerful tools to detect attempts by Chinese hackers to preempt our cyber and critical infrastructure systems and to root out those hackers before they can act or to stop foreign cyberattacks while in progress,” Wray said. Almost every day, through our 702 intelligence, we see evidence of China's efforts to surveil and steal information about our military.”
But civil rights advocates have said that the program goes far beyond counterterrorism efforts.
“Section 702 also violates the Constitution by inhibiting freedom of speech and association. The reasonable fear that the U.S. government is spying on communications may deter journalists, lawyers, activists, and others from communicating freely on the Internet. We all have a right to exchange messages with our friends, family, colleagues, and clients abroad without worrying that the government is reading over our shoulder,” the American Civil Liberties Union said in its opposition.
The ACLU is calling on Congress to narrow the scope of Section 702 and place stricter rules on who can be surveilled without a warrant.
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