With just over a month until a key spy authority expires, lawmakers face conflicting proposals about how far Congress should go in providing privacy protections to American information collected under the program.
Discussions about reauthorizing Section 702 of the Foreign Intelligence Surveillance Act this year have centered on when national security authorities should be able to search for information on Americans.
But the first proposals have only recently been publicly released, and they contain differing visions about what policies should be added to the program before it is renewed.
The House Judiciary Committee is poised to be the first panel to act on a Section 702 bill, with a markup as early as next week, though the text has not been publicly released as of Wednesday.
Chairman Jim Jordan, R-Ohio, a staunch critic of Section 702, said Wednesday that legislation on the surveillance authority and changes to the broader Foreign Intelligence Surveillance Act will be marked up on Dec. 6.
Section 702 allows the U.S. government to collect the digital communications of foreigners who are located outside the country. But the law also allows U.S. authorities to search through data collected under the program for information about Americans, without a warrant, using information such as an email address.
As in the past, the debate over the surveillance program does not cut along strict partisan lines.
Earlier this month, a group of bipartisan, privacy-minded lawmakers rolled out legislation that would impose a warrant requirement for information on Americans, with certain exceptions.
The measure drew support from privacy advocates, as well as from conservatives such as Rep. Andy Biggs, R-Ariz., and Rep. Thomas Massie, R-Ky., along with progressive Democrats such as Rep. Pramila Jayapal of Washington state and Sen. Elizabeth Warren of Massachusetts.
But on Tuesday, Sens. Mark Warner, D-Va., and Marco Rubio, R-Fla., the chairman and ranking member of the Senate Intelligence Committee, threw their support behind legislation that includes a prohibition on searches of Section 702 information that are solely designed to find evidence of criminal activity, a proposal that privacy advocates argue only encompasses a small fraction of the searches.
That bill garnered bipartisan Senate support, including from Sen. Lindsey Graham of South Carolina, the top Republican on the Judiciary Committee, and Sen. Sheldon Whitehouse, D-R.I., another member of the Judiciary Committee.
Meanwhile, Republicans on a working group of the House Intelligence Committee released a report that outlines the changes they want to see to Section 702.
That report also suggested a requirement that the FBI get a probable cause warrant only before using a U.S. person term for the purpose of searching for evidence of a crime, a provision that’s also received criticism from privacy advocates.
Rep. Darin LaHood, R-Ill., who led a working group on FISA this year, said the report also suggests changes to restrict the number of FBI personnel who are authorized to search for U.S. persons, create specific criminal liability for Section 702 leaks of Americans communications and mandate independent audits of all FBI searches of U.S. persons.
“It’s particularly important that we focus on 702 today because of what’s going on in the world,” LaHood said at a Washington event Tuesday. “Whether it’s the war raging in the Middle East, the conflict in Ukraine, what has gone on in the South China Sea as relates to China.”
The latest stopgap funding measure skipped a chance to extend the Section 702 authorities Speaker Mike Johnson’s office said that would allow the House to “continue to build momentum for a FISA reform package that protects the privacy of Americans from government overreach and protects our national security.”
Program supporters say Section 702 has disrupted planned terrorist attacks and identified foreign ransomware attacks on U.S. infrastructure, along with helping in the fight against the fentanyl crisis.
For example, a senior administration official, who spoke on the condition of anonymity under ground rules set by the Biden administration, said U.S. person queries helped prevent Iranian ransomware attacks and helped protect the deputy attorney general when a nation state was trying to hack her personal email account.
But privacy advocates say the warrantless searches infringe on the Fourth Amendment, and more protections and oversight are needed.
The Foreign Intelligence Surveillance Court has found “persistent and widespread” compliance problems with the FBI’s searches under Section 702. The FBI had improperly searched foreign surveillance information using the last names of a U.S. senator and a state-level politician, according to a court opinion released earlier this year.
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