A bipartisan group of lawmakers rolled out legislation Tuesday that includes a warrant requirement for certain information collected under a foreign surveillance authority, as it remains unclear how Speaker Mike Johnson will handle the controversial program’s end-of-year expiration date.
The legislation is the first major proposal unveiled for reauthorization of 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.
But the law also allows U.S. authorities to search through the foreign surveillance data for information on Americans, without a warrant, using information such as an email address.
The legislation from the group of privacy-minded lawmakers included provisions that would limit the U.S. government’s ability to conduct warrantless searches for information on Americans, according to summaries from the lawmakers.
Biden administration officials argue a warrant requirement would be unworkable, while privacy advocates say the warrantless searches infringe on the Fourth Amendment.
Sen. Ron Wyden, an Oregon Democrat and a leader of the bipartisan group, said the nation’s founders made it clear that the government should get a warrant if they want to read the private communications of Americans. He argued their legislation would protect national security and shield the liberty of Americans.
“Americans understand that it’s possible to confront our country’s adversaries ferociously without throwing our constitutional rights into the garbage can,” Wyden said at a press conference Tuesday. “But for too long, the surveillance laws haven’t kept up with changing times.”
The legislation unveiled Tuesday would extend Section 702 for about four more years. But the legislation would prohibit the U.S. government from searching through Section 702 information for the communications of Americans, if that information would require a probable cause warrant if “sought for law enforcement purposes.”
There are exceptions to the provision. For example, the prohibition would not apply when there’s an emergency involving an “imminent threat of death or serious bodily harm,” or when an individual is the subject of a criminal warrant.
Exceptions in the bill will allow the government to use Section 702 to help in rescuing hostages overseas, and still permits the government to use the program for defensive cybersecurity purposes, according to supporters of the bill.
A senior administration official, who spoke with reporters Tuesday on the condition of anonymity under ground rules set by the Biden administration, said there’s room for negotiation over how to handle those types of searches but argued it would be “operationally unworkable” to get court approval to access the information. The official said the idea would be a “red” line for their side.
FBI Director Christopher Wray, at a Senate hearing last week, warned that a warrant requirement could hamper the FBI’s ability to protect Americans from terrorist attacks.
Bipartisan support
The legislation announced Tuesday has drawn the support of legislators across the political spectrum, including 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 Elizabeth Warren of Massachusetts.
Sen. Mike Lee, a Utah Republican who is supporting the legislation, said Section 702 is necessary but needs to be changed, pointing out that hundreds of thousands of warrantless searches about Americans are conducted each year.
“The right number for that is zero. It should be zero,” Lee said. “Our privacy isn’t just a suggestion, it is in fact a constitutional guarantee.”
Rep. Zoe Lofgren, D-Calif., said the moment is the best chance in many years “to make sure that the Fourth Amendment, which protects Americans, is actually adhered to by the federal government.”
Meanwhile, House Judiciary Chairman Jim Jordan, R-Ohio, on Monday said there’s a lot of “good elements” in the legislative text rolled out by the group of lawmakers.
“Some of the stuff I think we already have in our base text that we’re finalizing,” Jordan said.
The Biden administration has praised the surveillance power as a cornerstone of national security.
The senior administration official pointed to the benefits of U.S. person queries, saying those searches helped prevent an assassination on U.S. soil, 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 since the last renewal, several revelations have prompted criticism of Section 702.
The Foreign Intelligence Surveillance Court has found “persistent and widespread” compliance problems with the FBI’s searches under Section 702. A court opinion released earlier this year found that the FBI had improperly searched foreign surveillance information using the last names of a U.S. senator and a state-level politician.
And one House Republican, Rep. Darin LaHood of Illinois, a member of the House Intelligence Committee, has said his name was wrongfully searched in surveillance information.
Speaker Johnson
Johnson, in a letter outlining his timeline for tackling appropriations bills and other legislative priorities, made no mention of Section 702 and the approaching end-of-year expiration date.
Johnson could face a balancing act as he approaches the issue, facing privacy concerns from libertarian-leaning conservatives but also the national security concerns of security-focused Republicans.
The Louisiana Republican is a staunch conservative, brings a defense-focused background to the speakership and voted for the program’s latest renewal under the presidency of Donald Trump.
But Johnson is aligned with several members of the conference’s right flank who are ardent critics of the program and want to see changes.
Johnson joined Jordan on a letter to the FBI last year asking for more information about Section 702 as part of oversight efforts into the agency’s use of FISA authorities.
They asked about the number of FBI employees who have access to information acquired under the program, and about Section 702 compliance measures.
The two wrote that it’s “imperative that Congress is fully informed about the FBI’s steps to improve its respect for the constitutional and statutory parameters of FISA — including section 702.”
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