WASHINGTON (CN) – The House Judiciary Committee grappled for hours on Wednesday over the delicate question of how to reconcile national security objectives with Americans’ right to privacy as it considered the fate of a contentious section in the Foreign Intelligence Surveillance Act.
The committee, holding its first session of the year, ultimately agreed Section 702, which sets the ground rules for warrantless surveillance by the government, should be renewed — but only after some tweaking.
The Foreign Intelligence Surveillance Act provides the legal framework that allows the government to collect foreign intelligence information in a number of ways, including physical searches, wiretapping, pen registers, and by sorting through specific business records.
Congress enacted Section 702 in 2008 after President George W. Bush authorized the National Security Agency to intercept communications in and out of the U.S. from persons suspected of being linked to terrorist groups.
The section established additional procedures for the government to follow in order to collect that communications.
But it is set to expire by the end of the year unless Congress takes action. The White House said Wednesday it would like to see the Section 702 reauthorized as-is; many on the committee, however, want to see at least a few privacy-strengthening reforms.
“When it comes to terrorists, we hunt them down and kill them. I don’t think anyone on this committee has any problem with Section 702 in how it goes after foreign bad dudes in foreign nations,” said Rep. Ted Lieu, a California Democrat.
But Lieu was also quick to add that capturing “bad dudes” through this type of spying also generates a myriad constitutional concerns – namely Fourth Amendment violations – for American citizens whose communications could get caught in the dragnet.
“I think many of us have concerns when it comes to American citizens and how they incidentally get caught up in the surveillance,” he said.
Most disturbing to some committee member was what they said was a lack of transparency on the part of the National Security Agency about exactly how many or how often the communications of non-targeted Americans are reviewed by the agency.
Rep. John Conyers of Michigan, the ranking Democrat on the committee, chastised the intelligence community, saying that he was still waiting for a response to a letter the committee submitted last December which requested an estimate for the number of U.S. communiqués “incidentally” swept up by the NSA under Section 702 protections.
“I had hoped for better,” Conyers said.
Former NSA attorney April Doss, now a partner for the firm Saul Ewing, adamantly defended Section 702’s implementation telling the committee that the “first and most important point to make is that despite some public misconceptions to the contrary,  is a targeted intelligence authority.”
“It is not bulk collection,” she said. “In more concrete terms, 702 collection can only be initiated when an analyst is able to articulate and document a specific set of facts to meet the statutory and procedural requirements for demonstrating that a specific facility, like a phone number or email address, is associated with a specific user who is a non-U.S. person who is reasonably believed to be located outside of the U.S. and who likely to possess or communicate foreign intelligence information.”
Though Doss stressed that this “critically important difference,” makes it clear that Section 702 does not authorize bulk collection, her conclusion was challenged by Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center for Justice.
Goitein testified that surveillance under the section’s auspices does target “a massive amount of Americans’ communications.”
“The FBI is reading Americans’ emails and listening to their phone calls without a factual basis to suspect them of wrongdoing, let alone a warrant,” Goitein said.
Rep. Ted Poe, a Texas Republican shook his head vigorously as Goitein spoke.
“I think that is illegal, a violation of the Constitution and an abuse of power by our government on Americans, for whatever my opinion is worth,” he said.
Though the NSA has not provided Congress with any estimates – rough or otherwise – about how many potentially non-targeted individual communications have been swept up in the name of national security, what is known is that the information captured is stored and can be searched through and used for prosecution by the FBI, CIA or Department of Justice, Goitein explained.
“Can privacy and national security co-exist?” asked Wisconsin Rep. Jim Sensenbrenner.
“Absolutely. But it’s never going to be perfect privacy or perfect security,” said Jeff Kosseff, assistant professor at the United States Naval Academy’s cyber science department.
Rep. Raul Labrador also asked the panel to explain what sort of safeguards or oversight methods were place to prevent abuse by feds listening in.
Citing last month’s resignation of National Security Adviser Michael Flynn, the Idaho Republican asked the panel if any safeguards were in place to prevent the agency from using personal information uncovered in surveillance to settle personal or political scores.
Goitein deftly stepped out of that political mire and refrained from commenting on the specifics surrounding Flynn’s surveillance. She did however concede that “the statute is not narrow enough.”
It was discovered last month that the FBI reviewed calls between Flynn and the Russian ambassador to the U.S. ahead of President Donald Trump’s inauguration.