WASHINGTON, D.C. — As it pushes to renew a cornerstone law that authorizes major surveillance programs, the Biden administration faces an American public that’s broadly skeptical of common intelligence practices and of the need to sacrifice civil liberties for security.
Congress in the coming months will debate whether to extend Section 702 of the Foreign Intelligence Surveillance Act. Section 702 authorizes U.S. spy agencies to collect large amounts of foreign communications for intelligence purposes ranging from stopping spies to listening in on allies and foes. Those collection programs also sweep up U.S. citizen communications that can then be searched by intelligence and law enforcement officers.
The poll from The Associated Press-NORC Center for Public Affairs Research shows that Democrats and Republicans have similar views on surveillance tactics, while Republicans have become substantially less likely over the last decade to say it’s at least sometimes necessary to sacrifice freedom in response to threats.
U.S. intelligence officials say Section 702 is necessary to protect national security and to counter China, Russia and other adversaries. They credit the program with better informing U.S. diplomats and enabling operations like last year’s strike to kill a key plotter of the Sept. 11, 2001 terrorist attacks.
But officials will have to overcome sharp divisions in Congress and bipartisan anger at the FBI, though most observers still believe Section 702 will be renewed in some form.
Driving a political shift is increasing skepticism among Republican elected officials of the FBI and intelligence agencies. Conservatives have battered the FBI for misleading the primary surveillance court in its investigation into former President Donald Trump campaign’s ties to Russia. Trump and other top Republicans often accuse the so-called government “deep state” of using its powers to target conservatives.
Historically, “the left flank has been the more vocal objector to government surveillance on privacy and civil liberties grounds,” said Carter Burwell, who was chief counsel to Sen. John Cornyn, R-Texas, when the law was last renewed in early 2018.
“Over the past five or 10 years, with the rise of the libertarian wing of the Republican Party, call it the antigovernment wing of the Republican Party, that is an equally vocal and powerful plurality,” said Burwell, now a lawyer at the firm Debevoise & Plimpton.
The poll asked U.S. adults whether they support several practices authorized by Section 702. It found that 28% of adults support the government listening to phone calls made outside of the U.S. without a warrant, while 44% oppose the practice. Views are similar about the U.S. reading emails sent between people outside of the U.S. without a warrant.
The public was more receptive to surveillance of activity outside of the U.S. a decade after the Sept. 11, 2001 attacks. That shifted significantly by the 20th anniversary of the attacks in 2021.
In the latest poll, 48% of Americans this year said they believed it necessary to sacrifice their rights and freedoms to prevent terrorism, down from 54% in 2021 and nearly two-thirds in 2011. That shift was especially dramatic among Republicans, with just 44% saying that’s sometimes necessary compared with 69% in 2011. Among Democrats, 55% still say so, similar to the 59% who said so in 2011.
Sarah Apwisch, a 57-year-old from Three Rivers, Michigan, described herself as somewhat opposed to the monitoring of foreign emails and phone calls. A Democrat, Apwisch said she was “mostly pro-FBI” but concerned after years of negative stories about the bureau.
“Honestly, I don’t want to hear anything about the FBI,” she said. “I want the FBI to go do their business and not be in the news because they’re doing their job well and not doing things that make waves. How they do that, I don’t know.”
Apwisch also said she supports the FBI and other agencies trying to hunt down enemy spies, but was uncertain about whether the FBI should also use foreign intelligence to investigate other U.S. crimes.
White adults were somewhat more likely to say they were opposed to various forms of surveillance — 48% said they opposed the government listening to foreign calls without a warrant — than Black or Hispanic adults, each at 34%.
In Congress, some Democrats and Republicans have found common cause over their complaints about Section 702. Two lawmakers earlier this year issued a statement calling for an end to U.S. surveillance without a warrant. Rep. Pramila Jayapal, D-Wash., chairs the liberal Congressional Progressive Caucus, while Rep. Warren Davidson, R-Ohio, is a member of the conservative House Freedom Caucus.
“We must take this opportunity to reform Section 702 and overhaul privacy protections for Americans so that they truly protect the civil rights, civil liberties, and privacy rights that are foundational to our democracy,” Jayapal and Davidson said.
Previous lawmaker efforts to require warrants for searching intelligence databases have failed. Intelligence officials argue they have ramped up training for agents searching the databases and tightened requirements to consult with lawyers on sensitive queries.
Supporters of Section 702 argue most U.S. adults want the government to stop foreign adversaries even if they state misgivings about how American intelligence operates.
Glenn Gerstell, a former general counsel at the National Security Agency who is advocating for Section 702 to be extended, noted that while Congress has to be responsive to public opinion, “some of this gets pretty technical and isn’t easily understood by the public.”
He said he still believed the law would be renewed with some amendments to bolster civil liberties protections and enshrine into law changes that the FBI has made in response to a series of wrongful uses of foreign intelligence.
“At the end of the day, I think most members of Congress understand the value of the statute and understand that when we don’t have the statute, there is no substitute,” Gerstell said.