Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the warrantless surveillance of foreign nationals located outside the United States.
Federal officials say the program is essential to protecting the homeland from foreign threats.
However, regular abuse by FBI employees using the program to spy on U.S. citizens has raised questions about how the law could be changed to protect both national security and basic privacy rights.
Now, with Section 702 set to expire on Dec. 31, both congressional chambers are in a scramble to find a solution that works for everyone—or at least the required majority.
In the eyes of House Intelligence Committee Chairman Mike Turner (R-Ohio), the best solution is the bill that his committee approved on Dec. 7, the “FISA Reform and Reauthorization Act,” which he sponsored.
Changes that the legislation would enact include revoking the FBI’s authority to conduct Section 702 queries unrelated to national security, limiting the number of FBI personnel who can approve queries involving U.S. citizens, and requiring congressional notification when searches involve members of Congress.
The law would also include provisions to further restrict and increase transparency of both the FISA application process and Foreign Intelligence Surveillance Court proceedings, among other revisions.
“Our bill is targeted toward FBI abuses, protecting ... American citizens, and ensuring that we can address national security threats to our nation,” Mr. Turner said in opening the committee’s meeting.
The Judiciary Committee’s proposal, he contended, focuses more on “expanding the constitutional rights of foreigners who travel in and out of the United States” than addressing the FBI’s violations.
“It creates civil liability for telecommunications companies that work with the intelligence community voluntarily. And curiously, it provides immunity from prosecution for horrific crimes if they’re discovered in 702 foreign intelligence collection,” he said.
Warranted or Unwarranted?Another core difference between the two committees’ proposals is that the Judiciary Committee’s bill—the “Protect Liberty and End Warrantless Surveillance Act”—would require a warrant for FISA 702 database searches of Americans’ communications.
The Intelligence Committee excluded that requirement from its bill.
Touching on that exclusion on Dec. 7, Mr. Turner noted that the law already prohibits the use of 702 powers to target U.S. citizens.
Section 702, he stressed, is a “highly targeted collection program that only collects on foreign targets who possess or communicate valuable foreign intelligence information—in short, threats to national security.”
“The authority does not, and with today’s bill being marked up, will not allow the intelligence community to target any Americans without a warrant,” he said.
But proponents of the Judiciary Committee’s measure point to the FBI’s repeated flouting of that restriction as proof that more safeguards are needed.
“Our civil liberties are at stake. Without serious reforms to FISA 702, our Fourth Amendment rights will be all but gone. My legislation addresses numerous loopholes in federal law to end this unconstitutional practice and to ensure rogue agents are held accountable.”
Rep. Dan Crenshaw (R-Texas), however, called Mr. Biggs’s proposal “downright terrifying” and said claims that its provisions align with the Fourth Amendment are inaccurate.
“The proper analogy would be saying that you need a warrant every time a cop wants to run a license plate. That’s of course not how we do things,” the former Navy SEAL said.
“We’re able to access databases with information that we already lawfully have. I don’t know if the people proposing these reforms understand that.
Concerns RaisedMr. Turner’s bill passed out of the committee without objection, but the concern was raised that it didn’t go far enough in protecting Americans’ privacy rights or minimizing the potential for abuse.
Rep. Joaquin Castro (D-Texas) said he would have preferred that the measure include more restrictions on when the federal government is permitted to query the communications of U.S. citizens and the potential for judicial review of those decisions.
The congressman also said that he was unable to support the bill due to a provision that allows for the vetting of foreign nationals traveling to the United States.
“I fear that codifying this provision, especially without meaningful safeguards, would give those who capitalize on fear and xenophobia an important tool to pursue their agenda,” he said.
“I do not believe that this is the intention of the authors of the bill, but we cannot trust those who wield these powers that we present to them in the future will not abuse those powers.”
Alluding to the Judiciary Committee’s bill and others that have been put forward, Mr. Castro said he would continue to work with colleagues in both committees and the Senate to find a solution he could support.
While multiple long-term reforms to Section 702 are being considered, a temporary extension of the program’s authorization may be in the works.
According to Mr. Turner, the House may embed the extension in the National Defense Authorization Act.
“Well, obviously, the House has been in chaos, and our legislative business has been disrupted. So, I think it’s an appropriate extension to give the House the ability to address 702. By extending it, we avoid the calamity of disruption,” he told reporters on Dec. 6.
It remains unclear how long the authorization would be extended, though the congressman voiced support for prolonging it until April.