US Lawmakers Propose Bill to Curtail FBI’s Warrantless Spy Powers

Sen. Ron Wyden (D-Ore.) participates in a Senate Finance Committee hearing in Washington on March 22, 2023. Kevin Dietsch/Getty Images

A new bill introduced Nov. 7 would curtail the power of the FBI and other intelligence agencies to conduct warrantless searches on Americans.

The Government Surveillance Reform Act would forbid the bureau and other agencies like the CIA from querying a database for information on Americans, with exceptions.

The database contains information collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA).

FBI employees have repeatedly failed to follow rules for using the database, including inappropriately searching for a U.S. senator and Jan. 6, 2021, protesters, courts and watchdogs have found.

Some groups have called for an end to all warrantless searches on Americans, but the new bill would not go that far.

It would prohibit queries of the database for information on Americans or people located in the United States, but provides exceptions in certain situations: when the subject has a criminal warrant; when authorities have obtained an order or emergency authorization to query the subject; when the person seeking information believes “an emergency exists involving an imminent threat of death or serious bodily harm” and that a query is needed prior to authorization; and when the subject of the query, or a person on their behalf, has provided consent to a query.

The prohibition applies to information that would require a probable cause warrant if law enforcement sought it. The prohibition does not apply to queries for communications metadata.

“Our founding fathers made it clear that if government agencies want to read an American’s private communications, they should get a warrant. But today, American intelligence agencies hoover up large volumes of electronic communications, and they claim they have a right to search individual Americans’ texts and emails without getting a warrant. They don’t have that right. And it’s time for the law to reflect that,” Sen. Ron Wyden (D-Ore.), co-sponsor of the new bill, told reporters in a briefing.

Sen. Mike Lee (R-Utah), another co-sponsor, said the numerous instances of FBI employees flouting rules means “we’ve got to act here and now.”

“Our central message here is you can’t bypass the Fourth Amendment,” Mr. Lee said. “When you do, bad things happen.”

The FBI and U.S. Department of Justice did not respond to requests for comment.

If a new bill is not passed, the authorities granted under Section 702 will expire at the end of the year.

U.S. officials have said they oppose weakening the spy powers they currently enjoy.

“With everything going on in the world, imagine if a foreign terrorist overseas directs an operative to carry out an attack in our own backyard, but we’re not able to disrupt it because the FBI’s authorities have been so watered down,” FBI Director Christopher Wray told a Senate committee in October.

The FBI has previously acknowledged that its employees have violated rules governing usage of the database, but insisted it has made changes to prevent future violations.

Bipartisan Support

Any legislation dealing with FISA needs bipartisan support to get through the Republican-controlled House of Representatives and the Democrat-controlled Senate.

The new bill already has support from Sens. Tammy Baldwin (D-Wisc.), Steve Daines (R-Mont.), Mazie Hirono (D-Hawaii), Cynthia Lummis (R-Wyo.), Jon Tester (D-Mont.), Elizabeth Warren (D-Mass.), and Edward Markey (D-Mass.).

“Federal intelligence agencies have access to powerful surveillance tools that help protect our national security from foreign threats—but these tools too often violate Americans’ privacy rights,” Ms. Warren said in a statement. “This bill will rein in these abuses and reform FISA’s Section 702 to protect Americans from mass, warrantless surveillance.”

Mr. Daines added: “Americans have a constitutional right to be protected from unreasonable searches and seizures that is nonnegotiable. As the federal government is increasingly sticking its nose into Americans’ private conversations and records, we must put an end to illegitimate searches and protect this fundamental right.”

In the House, the bill has also attracted support from members of both parties.

Reps. Andy Biggs (R-Ariz.), Warren Davidson (R-Ohio), Pramila Jayapal (D-Wash.), Zoe Lofgren (D-Calif.), Thomas Massie (R-Ky.), Sara Jacobs (D-Calif.), Nancy Mace (R-S.C.), Judy Chu (D-Calif.), Lloyd Doggett (D-Texas), Barbara Lee (D-Calif.), Lou Correa (D-Calif.), and Ted Lieu (D-Calif.) say they back the legislation.

“Our bipartisan, bicameral comprehensive and calibrated legislation provides reform solutions sought for decades,” Ms. Lofgren said in a statement.

Some groups have also announced they think the bill should be passed.

The legislation contains “important safeguards” such as allowing people subject to warrantless queries to bring legal cases over injuries they’ve suffered, the Electronic Frontier Foundation said in a statement.

Jason Pye, director of rule of law initiatives at the Due Process Institute, said the bill “is the only path forward to protect Americans from warrantless surveillance.”

John Yang, president and executive director of Asian Americans Advancing Justice, added that “This critical bill would put in place protections and transparency mechanisms that help to regulate the collection of Americans’ sensitive communications, and reign in the likely greater impact that such existing authorities have on communities of color.”