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Biden admin approves Chinese companies' tech licenses but seeks FISA Act renewal for China threat

House Foreign Affairs Committee Chairman Michael McCaul (R-Texas) called on the Commerce Department to start denying licenses to Chinese companies.

Published: March 1, 2023 1:09pm

Updated: March 2, 2023 11:30pm

The Biden administration is sending sharply conflicting signals on China, with the Justice Department urging renewal of controversial surveillance authority to counter Chinese espionage, while the Commerce Department has approved more than $23 billion of tech licenses to blacklisted companies based in China.

In a speech Tuesday at a Washington think tank, Assistant Attorney General for the National Security Division Matthew Olsen urged congressional renewal of the Foreign Intelligence Surveillance Act's (FISA) Section 702 surveillance authority, which is set to expire at the end of year.

Adopted in 2008, Section 702 grants U.S. intelligence agencies sweeping authority to collect without a warrant electronic communications of foreign citizens located outside the U.S., provided that a "significant purpose" of the surveillance is to gather "foreign intelligence."

Many civil libertarians have long opposed Section 702. Citing the risk of "incidental collection" of private communications from U.S. citizens (whether accidentally or by design), they reject the authority as a threat to privacy and Fourth Amendment protections against unreasonable searches and seizures.

"At this moment, when China is ramping up its aggressive efforts to spy on Americans, it would be a grievous mistake to blind ourselves to that threat by allowing this critical authority to expire," Olsen said at the Brookings Institute

Even as DOJ is prioritizing vigilance against Chinese spies over domestic civil liberties concerns, however, the Commerce Department appears to be prioritizing Chinese economic interests over U.S. security, as the department's Bureau of Industry and Security (BIS) has approved more than $23B of tech licenses for China-based companies blacklisted due to to national security concerns.

House Foreign Affairs Committee Chairman Michael McCaul (R-Texas) on Tuesday called on the department to step up denials of licenses to Chinese companies. 

"We are currently in the middle of a struggle for the global balance of power — and the primary battleground is technology leadership," McCaul said in a statement. "So, it is absolutely astounding BIS approved more than $23 billion worth of licenses to sell U.S. technology to blacklisted companies based in China.

"In total, only eight percent of licenses to these entity-listed companies were denied. It is well within BIS Under Secretary [Alan] Estevez's authority to update these licensing policies and start denying licenses."

In a previous instance of Biden administration deference to Chinese interests, the Justice Department Counterintelligence Division just over a year ago canceled the China Initiative, an FBI program to root out economic and technological espionage carried out by Chinese intelligence assets planted within American universities by the nation's communist regime. 

Former Chief of Staff for the Director of National Intelligence Dustin Carmack called the Biden administration's handling of China a "Jekyll and Hyde approach."

"I think some people in the administration definitely understand the challenge of China and the threat of China, and then you have others that kind of quietly are trying to undermine different routes of it," Carmack said on the John Solomon Reports podcast. 

Carmack, however, does align himself with the administration's support for Section 702 renewal.

"I actually agree with 702 authorities being used from a positive standpoint, especially to fight the threat of China for a multitude of reasons, such as cyber espionage," he said. 

The Bureau of Industry and Security has not responded to a request for comment.

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