The latest short-term extension of a law granting the government crucial spy powers has given privacy advocates in Congress a glimmer of hope that they will finally slam shut “backdoor searches” of Americans’ communications.
It’s a deal with Congress’ national security hawks that has proved elusive for the roughly 17 years since the law was added to the Foreign Intelligence Surveillance Act.
“The NSA is scooping up a lot of data, and it’s not just metadata. It’s actual content: the text messages, voicemails, as well as emails. And when they do that, in some cases, they’re also sweeping up Americans’ data,” said Rep. Zoe Lofgren, California Democrat.
Most FISA reformers are pushing for some form of a judicial warrant requirement because they do not trust the executive branch to police itself, regardless of which party is in power.
“The vast majority of members of this body and the American people want a federal judge, not an FBI agent or an FBI lawyer to stand between them and their private communications,” Rep. Jamie Raskin, the top Democrat on the Judiciary Committee, said during floor debate on the short-term extension of the law.
The extension, the second in the past month, gives Congress until June 12 to reauthorize FISA Section 702, which authorizes the surveillance of communications of non-U.S. persons abroad.
President Trump called for a “clean” 18-month extension of current law in late March, ahead of the first deadline that Congress punted. Lawmakers have moved toward a three-year reauthorization with changes but have had trouble agreeing on appropriate oversight measures.
“Every day that we go by without having another long-term extension is a day that we continue to have reforms as a possibility,” Rep. Chip Roy, Texas Republican, told The Washington Times.
He said a House-passed bill that added new oversight provisions and criminal penalties for abuses of the surveillance authority was good but “not enough.”
The Senate declined to take up that measure, instead initiating another short-term extension of current law.
Conservative and liberal civil liberty advocates do not want to renew Section 702 without guardrails to protect U.S. citizens’ data that may be caught in the foreign surveillance.
Mr. Raskin, of Maryland, said the FISA reauthorization bills congressional leaders have offered to date have been “paltry restatements of current law” that will not protect against the “real violations perpetrated by the FBI.”
The main dispute is over the government querying Section 702 data using U.S.-person search terms without warrants.
This is the “backdoor search.” The government collects foreign communications, but Americans’ messages get ensnared when they communicate with those foreign targets. The FBI can search that database specifically for Americans without a warrant.
Rep. Thomas Massie, Kentucky Republican, said FISA databases have been used to query political activists, journalists, congressional lawmakers and staff and “random romantic interests of FBI agents.”
He said it is a clear “infringement of the Constitution.”
The Fourth Amendment establishes a right to privacy that protects people and their “papers and effects against unreasonable searches and seizures.” Searches require a warrant issued with an affirmation of “probable cause.”
FISA reformers say the warrant requirement should apply to communications involving U.S. persons collected under Section 702.
“There are some exceptions. If there are exigent circumstances, an emergency, you don’t need a warrant. They say, ‘Well, what if you’re a victim?’ Consent is also an exception to the warrant,” Ms. Lofgren said. “But what we’re saying is, if you know that you’re searching for the content of an American, you should get a warrant, absent those exceptions.”
Additionally, these lawmakers want to prevent government agencies from evading the Fourth Amendment to buy Americans’ sensitive location information and other personal details from data brokers.
They say that if the FBI wants to track someone’s phone, obtain their location information or access their Google search history, the agency should also be required to get a judicial warrant.
Lawmakers who say a warrant requirement is unnecessary, including members of the intelligence committees, argue a query of Section 702 data is not a “search” under the Fourth Amendment because the government is not required to obtain a warrant to read information it already lawfully owns.
“We’re not solving crimes. We’re investigating potential national security threats, so a warrant wouldn’t be required in fullness there,” said Sen. Lindsey Graham, South Carolina Republican.
The U.S. Foreign Intelligence Surveillance Court, or FISC, decided four times that an FBI query of Section 702 is not a separate Fourth Amendment event from the original collection, which was legal. The appeals court upheld those findings.
The FBI has long argued that imposing a warrant requirement would amount to a de facto search ban. They argue that query applications either would not meet the legal threshold or those that do would require lengthy legal filings and resources to win court approval.
The bureau says the government does not have that kind of time, given the many threats the country faces.
Various FISA overhaul proposals have tried to balance the need to quickly identify and counter national security threats with privacy guardrails.
The SAFE Act, introduced this year by Sens. Mike Lee, Utah Republican, and Richard Durbin, Illinois Democrat, requires a warrant or FISA Title I order before the government reads the contents of Americans’ communications returned by a 702 query (not before running the query itself).
This proposal includes exceptions for emergencies, consent and cybersecurity. It also closes the data broker loophole.
Mr. Lee also introduced legislation with Sen. Ron Wyden, an Oregon Democrat, known as the Government Surveillance Act. This bill is broader than the SAFE Act and adds warrant requirements for location data, web browsing history, AI/chatbot records and car telematics.
On the House side, Rep. Andy Biggs, Arizona Republican, put forth the Protect Liberty Act, the companion bill to the Senate’s SAFE Act legislation.
Other House bills that had warrant measures included the Surveillance Accountability Act and the Government Surveillance Reform Act, the House version of Mr. Lee’s and Mr. Wyden’s bill.
Connecticut Rep. Jim Himes, the top Democrat on the House Intelligence Committee, and Mr. Raskin had tried to negotiate a bipartisan, bicameral deal but said House Speaker Mike Johnson and GOP leaders shut that down.
Mr. Himes said he and Mr. Raskin had started drafting a proposal that would allow the government to query U.S. persons, but to get sign-off from a FISC judge if they want to review any information returned under the search.
“The draft we had would have required the government to attest that there that it was reasonably likely to return foreign intelligence information, as opposed to probable cause, that a crime had been committed,” he said.
Requiring judicial review after the initial search of the FISA database would save a lot of time because a lot of U.S. person queries don’t return any information, Mr. Himes said.
“We’ve never gotten a good number, but I mean if you assume that half of FBI U.S. person queries return information, you’re talking about 3,500 requests to the court,” he said. “That’s at least in the zone of practicality. You’d need more judges, but it’s conceivably workable.”
