The House has pushed off a vote on a measure that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), a spy power that’s meant to target noncitizens abroad but has, at times, swept up Americans in the process.
The legislation would make a series of wide reforms to the FISA spying authority, which has come under increasingly heavy scrutiny since it was last reauthorized in 2018. However, the package has drawn blowback from the House Freedom Caucus members, who have called for the bill to include a warrant requirement.
The intelligence community’s use of Section 702 of FISA has drawn mounting criticism from both the left and right in recent years after damning reports on its use to surveil Americans.
While intelligence agencies have acknowledged the need for some reform to protect civil liberties, they maintain the tool is vital to counter foreign threats, in particular Chinese communist espionage.
“In order to allow Congress more time to reach consensus on how best to reform FISA and Section 702 while maintaining the integrity of our critical national security programs, the House will consider the reform and reauthorization bill at a later date,” Raj Shah, spokesman for House Speaker Mike Johnson (R-La.), wrote on social media on Feb. 14.
The House Rules Committee was scheduled to take up the “Reforming Intelligence and Securing America Act” on Feb. 14.
Freedom Caucus Objects
Other reforms in the 82-page measure, introduced by Rep. Laurel Lee (R-Fla.), include requiring the FBI to put into writing the rationale for surveilling a U.S. citizen. It would mandate that the FBI director notify Congress of surveillance inquiries involving members of Congress. It would also revoke the FBI’s use of Section 702 to investigate a matter not pertaining to national security and make changes to the courts that authorize Section 702 queries.The House Freedom Caucus has objected to the bill, calling for a warrant mandate to be added.
“At the end of the day, we’ve got to make sure that our government can’t keep spying on its citizens without a warrant,” Rep. Bob Good (R-Va.), chairman of the caucus, said on Feb. 13.
“Simply put, anonymous bureaucrats have abused this tool that was intended for supporting surveillance of threats to spy on American citizens, but conservatives are fighting for strict reforms to this law.”
But national security adviser Jake Sullivan said on Feb. 14 that it isn’t in the U.S. national security interest to require warrants for FISA queries.
“We do not believe that that serves the national security interests of the United States,” he told reporters. “And in fact, today I will be making that case to a number of [congressional] members that the warrant requirement as conceived is not the best way actually to ensure the protection of the personal privacy of Americans.”
Nonetheless, Mr. Sullivan said that the administration does support “a number of other elements of the bill ... that would reform and update FISA to protect the civil liberties of Americans.”
Mr. Johnson said on Dec. 12, 2023, that the controversial spying authority “must be dramatically reformed” but failed to take sides in an ongoing dispute over the matter between two powerful House committees.
Abuses
Since its reauthorization in 2018, FISA has consistently made headlines for abuses, leading many staunch privacy rights advocates in Congress to call for wide-ranging reforms—or its abolition.The most prominent of these abuses came prior to the 2018 reauthorization.
During the Crossfire Hurricane investigation into former President Donald Trump’s alleged links to Russia, it was discovered that the FBI had used FISA authority to spy on his 2016 campaign. A later special counsel report ruled that the entire investigation was unjustified and that the use of FISA against President Trump and his associates was equally unjustified.
In response to this incident, the new legislation would prohibit the FBI or other intelligence agencies from spying on political appointees, Senate and non-Senate confirmed, under the authority.
FISA was expanded in 2008, adding Section 702 to the 1978 legislation, vastly increasing its scope.
Under current law, Section 702 data—including Americans’ private data—can be “unmasked” by intelligence agencies if a superior rules that the unmasking is necessary for national security purposes.
This authority, in particular, has been subject to a series of misuses.
The largest abuses were found by a 2021 report, which revealed that in just a year, the FBI had queried as many as 3.3 million Americans using that power.
Specific cases have revealed serious allegations, including that the FBI spied on a sitting member of Congress; more than 20,000 campaign donors; Jan. 6, 2021, and Black Lives Matter protesters; and others—using Section 702 authorities.
Under the rules laid out in Section 702, intelligence officials can conduct warrantless searches of communications, including emails, text messages, and phone calls. This extends to communications routed through the U.S. private sector, which were previously protected by privacy law.
However, this program, among the government secrets revealed by Edward Snowden in 2014, has itself been at the center of several high-profile cases of abuse.
Civil liberty groups have protested the act, citing concerns about the potential for abuse. In the past few years, the powers granted to the intelligence community through FISA have been used to investigate American citizens.
