The House Judiciary Committee is scheduled to consider legislation Wednesday that would add a warrant requirement to a powerful spy authority, sharpening a divide between privacy-minded lawmakers and the Biden administration.
The markup would be the first committee vote this year on legislation to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, which allows the U.S. government to collect the digital communications of foreigners who are located outside the country.
The surveillance authority expires at the end of the year. The debate has centered around the ability of the FBI to search through data collected under the program, without a warrant, for information about Americans using information such as an email address.
Draft legislation expected to be voted on by the House Judiciary Committee would renew Section 702 for three more years but would insert a warrant requirement when it comes to information on Americans, with certain exceptions.
Those include situations where there’s an emergency involving an “imminent threat of death or serious bodily harm,” and situations in which a “cybersecurity threat signature” is used as a search term to prevent harm from malicious software, among others.
House Judiciary Committee members, including Chairman Jim Jordan, R-Ohio, and Rep. Jerrold Nadler, D-N.Y., the ranking member, have spoken harshly of the warrantless searches and emphasized the need for changes.
During an oversight hearing earlier this year, Jordan highlighted how the FBI conducted 204,000 searches of foreign surveillance data for information on Americans over a 12-month period ending in the winter of 2022, according to a report from the Office of the Director of National Intelligence.
“You can’t make this stuff up. There are 204,000 reasons why Republicans will oppose FISA reauthorization in its current form,” Jordan said during the hearing.
Nadler, speaking at a committee meeting earlier this year, described the foreign surveillance authority as an important tool used by the intelligence community to fight threats. But he raised transparency concerns and said current protections are insufficient in protecting privacy and civil rights.
FBI Director Christopher Wray and the Biden administration have opposed the idea of a warrant requirement, with the former saying such a demand would take up scarce resources, along with significant time that’s not available in the world of evolving threats.
Wray is set to testify Tuesday before the Senate Judiciary Committee, where he is likely to be asked about the issue. In October, he told a different Senate panel that a watered-down Section 702 could hamper the FBI’s ability to protect Americans from terrorist attacks.
Other lawmakers have pitched legislation with conflicting levels into how far Congress should go in providing privacy protections to American information collected under the program.
Sens. Mark Warner, D-Va., and Marco Rubio, R-Fla., the chairman and ranking member of the Senate Intelligence Committee, have thrown their support behind legislation that includes a prohibition on searches of Section 702 information that are solely designed to find evidence of criminal activity. That proposal, privacy advocates argue, only encompasses a small fraction of the searches.
As the renewal deadline approaches, a bipartisan cohort of dozens of lawmakers outlined their opposition last week to attaching a short-term Section 702 reauthorization to the National Defense Authorization Act.
“A temporary extension would be entirely unnecessary, and it would be an inexcusable violation of the public’s trust to quietly greenlight an authority that has been flagrantly abused,” the lawmakers argued. “There is simply no need for a short-term extension.”
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