House Speaker Mike Johnson’s new proposal to update laws for government spying got a big thumbs-down from civil liberties advocates who say it does not do enough to protect Americans’ privacy rights.
The Washington-based libertarian think tank CATO said the bill lacked Fourth Amendment protections against unlawful search and seizure.
“The reality is and always has been that mandating that the FBI live with a Fourth Amendment warrant requirement to get the digital data of Americans isn’t just what the Constitution requires. It’s absolutely technologically possible to do it in the FISA Section 702 context,” said Patrick Eddington, a CATO senior fellow in homeland security and civil liberties.
House Republicans are trying to overhaul the Foreign Intelligence Surveillance Act’s Section 702, which gives the government the power to spy on foreigners abroad, though Americans sometimes get caught up in the electronic surveillance.
Mr. Johnson’s bill faces obstacles with Democrats and the intelligence committee members in both chambers.
House Minority Leader Hakeem Jeffries told reporters Thursday that Democrats may not support FISA at all if FBI Director Kash Patel is leading the bureau.
“I made clear, as we’ve made clear publicly, there’s a trust situation that we confront on FISA 702,” he said.
“We recognize that in the abstract, it’s an important tool to help keep the American people safe from foreign terrorist actors,” he said. “At the same period of time, there is zero reason for us to trust Kash Patel.”
Currently, Section 702 must be reauthorized every two years, setting up a recurring debate in Congress over spy powers. The House GOP bill would delay that debate to every three years. That’s one of the biggest changes in the House bill.
The legislation would also add new accountability measures. It would add new restrictions on database searches for U.S. persons, mandatory civil liberties reviews, an audit of procedures for targeting people to spy on and criminal penalties for abuses.
Jake Laperruque, deputy director of the surveillance and security project at the Center for Democracy and Technology, said the House bill was not a reform bill, but “the same type of empty-calorie proposal that failed last week.”
“There is nothing in this bill that would have prevented the abuses of FISA 702 we’ve already seen — snooping on lawmakers, protesters, and campaign donors — and there is nothing that would stop even worse abuses in the future,”
Mr. Laperruque said.
“Members of Congress have a clear choice: they can support this proposal and give the FBI and other intelligence agencies a three-year blank check, or they can stand strong and demand real reforms to protect the American people.”
Congress recently extended the deadline to reauthorize FISA from April 20 to April 30. Senate leaders tried to take the reins on the legislation, but House leaders immediately pushed back.
The House Republican leadership proposal to reauthorize Section 702 includes new oversight and penalties for abuses of the surveillance authority, but it does not include the warrant requirements that GOP hard-liners and liberals wanted, including judicial warrants.
The bill would require the FBI to send monthly written reports to the Civil Liberties Protection Officer within the Office of the Director of National Intelligence documenting every query run using a U.S. person’s information.
Each query would be reviewed for compliance, and if a query appears improper or abusive, it would be referred to the Intelligence Community Inspector General for investigation.
The legislation also penalizes FBI officers or employees who knowingly and willfully violate querying procedures or who falsify records about compliance.
Those who commit such violations face up to five years in prison and/or fines. This is a new criminal penalty in addition to the existing unauthorized disclosure penalties.
The bill also explicitly prohibits the intentional targeting of U.S. persons under Section 702. To surveil a U.S. person, the government must obtain a proper court order — electronic surveillance, physical search or a standard criminal warrant.
Critics said the legislation merely continues the status quo with some window dressing changes.
