A bill to renew a powerful surveillance authority for two years would afford special treatment to members of Congress, adding a requirement that lawmakers be notified when they are the subject of an FBI search under the program.
The provision is tucked inside a broader bill being considered by the Senate that would renew Section 702 of the Foreign Intelligence Surveillance Act, which allows the U.S. government to collect digital communications of foreigners located outside the country.
Lawmakers have sought to add privacy protections to the program because it also sweeps up the communications of Americans and allows the FBI to search through data without a warrant, using information such as an email address.
But one change in the bill, the notification provision, has drawn objections from critics who say it would provide lawmakers with a heads-up that’s not afforded to regular U.S. citizens.
Rep. Thomas Massie, R-Ky., highlighted the provision during the House debate on the legislation, as he argued for adding a provision that would require the government to get a warrant when it comes to using the program to search for information about Americans.
“I think the American people would be a little concerned if they knew that there was a notification exception for a member of Congress that didn’t apply to regular citizens,” Massie said at a House Rules Committee meeting last week. “I think we all deserve protection under the Constitution.”
Rep. Pramila Jayapal, D-Wash., chair of the Congressional Progressive Caucus, also called attention to the provision, writing on social media that the bill would mean the “FBI has to notify Congressmembers to spy on us.”
“But regular Americans can be spied on without a warrant?” Jayapal wrote.
Under the measure, the FBI would notify a member who is the subject of a search conducted by the agency using a search term that is “reasonably believed to be the name or other personally identifying information of a member of Congress.”
Congressional leaders, along with the chairs and ranking members of the congressional intelligence committees, would also be notified under the bill.
The measure would allow the FBI director to waive the notification if they determine that it would “impede an ongoing national security or law enforcement investigation.” But that waiver would end either when the investigation ends or when the FBI director concludes that the notification would not impede the investigation.
The House voted 273-147 to pass the reauthorization bill that includes the notification provision but does not include the warrant requirement. Senate leaders scheduled a procedural vote on the bill Thursday. The Section 702 authority is set to expire Friday.
House Intelligence Chairman Michael R. Turner, R-Ohio, under questioning from Massie at the Rules Committee hearing, said the notifications would allow for congressional oversight and “would give us the ability to ferret out political biases.”
Republican Rep. Darin LaHood of Illinois was part of the process for drafting changes to the reauthorization bill, Turner said. LaHood, a member of the House Intelligence Committee, last year said his name had been wrongfully searched in surveillance information.
The FBI has also improperly searched foreign surveillance information using the last names of a U.S. senator and a state-level politician, according to a court opinion. The Privacy and Civil Liberties Oversight Board, which is an independent U.S. government board, reported that the FBI alone searched Section 702 databases for information on U.S. persons nearly 5 million times over three years.
LaHood’s office, in a press release after the reauthorization bill passed the House, said the legislation would decrease the number of FBI personnel “authorized to make U.S. person queries” by more than 90 percent and increase penalties for “government officials who engage in a range of misconduct related to FISA.”
Earlier this month, Speaker Mike Johnson, R-La., argued in a letter that the bill would establish new procedures to curtail the FBI, heighten accountability at the Foreign Intelligence Surveillance Court and “institute unprecedented transparency across the FISA process.”
Notification for some, not all
Massie raised concerns that members of Congress would change their votes to support the bill because they would get the notifications.
“That’s for you, Mr. Member of Congress. If you are going to be targeted in this database, if we’re going to search for you or your house or your home address or anything like that, or your phone number, we’re going to notify you — but we’re not going to do that for the rest of America. I think that’s wrong,” Massie said at the Rules Committee hearing.
Another section of the bill would not allow the FBI to do a search using the name of a congressional lawmaker “in order to supplement a defensive briefing about a counterintelligence threat to that Member,” unless the lawmaker gives their consent to such a search, according to a report from the Congressional Research Service.
Under the bill, the search could also be performed if the deputy director of the FBI decides that “exigent circumstances exist sufficient to justify the conduct of such query.”
The American Civil Liberties Union, in a letter to House lawmakers last week, said lawmakers who vote for the bill would be “voting to provide themselves with special privacy rights that do not apply for other Americans.”
“The ACLU does not oppose consent requirements for Section 702 searches done for cybersecurity or defensive purposes,” the letter read. “However, this requirement should apply to all Americans and not just members of Congress.”
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