A bipartisan group of lawmakers unveiled legislation Tuesday that would require a warrant for certain information collected under a foreign surveillance authority, as it remains unclear how Chairman Mike Johnson will handle the controversial programme’s expiration at the end of the year.
The legislation is the first major proposal to reauthorise Section 702 of the Foreign Intelligence Surveillance Act, which allows the US government to collect the digital communications of foreigners located outside the country.
But the law also allows US authorities to search foreign surveillance data for information on Americans without a warrant, using information such as an email address.
The legislation from the group of privacy-minded lawmakers included provisions that would limit the U.S. government’s ability to conduct warrantless searches for information on Americans, according to summaries from the lawmakers.
Biden administration officials argue that a warrant requirement would be unworkable, while privacy advocates say the warrantless searches violate the Fourth Amendment.
Senator Ron Wyden, an Oregon Democrat and a leader of the bipartisan group, said the nation’s founders made it clear that the government should get a warrant if it wants to read Americans’ private communications. He argued that their legislation would protect national security and safeguard Americans’ liberty.
“Americans understand that it’s possible to be tough on our country’s adversaries without throwing our constitutional rights in the trash,” Wyden said at a press conference on Tuesday. “But for too long, surveillance laws haven’t kept up with the changing times.”
The legislation unveiled Tuesday would extend Section 702 for about four more years. But the legislation would prohibit the U.S. government from searching Section 702 information for the communications of Americans when that information would require a warrant based on probable cause if sought “for law enforcement purposes.”
There are exceptions to this provision. For example, the ban wouldn’t apply if there is an emergency involving an “imminent threat of death or serious bodily harm”, or if a person is the subject of a criminal warrant.
The exceptions in the bill will allow the government to use Section 702 to help rescue hostages overseas, and still allow the government to use the programme for defensive cybersecurity purposes, according to the bill’s supporters.
A senior administration official, who spoke to reporters Tuesday on condition of anonymity under ground rules set by the Biden administration, said there’s room for negotiation on how to handle such searches, but argued it would be “operationally unfeasible” to get court approval to access the information. The official said the idea would be a “red line” for his side.
FBI Director Christopher Wray warned at a Senate hearing last week that a warrant requirement could hamper the FBI’s ability to protect Americans from terrorist attacks.
The legislation announced Tuesday has drawn support from lawmakers across the political spectrum, including conservatives such as Rep. Andy Biggs, R-Ariz. and Rep. Thomas Massie, R-Ky., as well as progressive Democrats such as Rep. Pramila Jayapal of Washington state and Elizabeth Warren of Massachusetts.
Sen. Mike Lee, a Utah Republican who supports the legislation, said Section 702 is necessary but needs to be changed, noting that hundreds of thousands of warrantless searches are conducted on Americans each year.
“The right number for this is zero. It should be zero,” Lee said. “Our privacy is not just a suggestion, it’s actually a constitutional guarantee.”
Rep. Zoe Lofgren, D-Calif, said the moment was the best chance in many years “to make sure that the Fourth Amendment, which protects Americans, is actually upheld by the federal government.”
Meanwhile, House Judiciary Chairman Jim Jordan, R-Ohio, said on Monday that there’s a lot of “good stuff” in the bill that the group of lawmakers put forward.
“Some of the things I think we already have in our base text that we’re finalising,” Jordan said.
The Biden administration has praised the surveillance authority as a cornerstone of national security.
Senior administration officials have pointed to the benefits of U.S. person searches, saying they helped prevent an assassination attempt on U.S. soil, thwarted an Iranian ransomware attack and protected the deputy attorney general when a nation-state tried to hack her personal email account.
But since its last renewal, several revelations have prompted criticism of Section 702.
The Foreign Intelligence Surveillance Court has found “persistent and widespread” compliance problems with the FBI’s Section 702 searches. A court opinion released earlier this year found that the FBI had improperly searched foreign surveillance data using the surnames of a US senator and a state-level politician.
And a House Republican, Representative Darin LaHood of Illinois, a member of the House Intelligence Committee, has said his name was improperly searched in surveillance information.
Johnson, in a letter outlining his schedule for tackling appropriations bills and other legislative priorities, made no mention of Section 702 and the approaching end-of-year expiration date.
Johnson could face a balancing act in his approach to the issue, facing privacy concerns from libertarian-leaning conservatives but also national security concerns from security-minded Republicans.
The Louisiana Republican is a staunch conservative, bringing a defence-focused background to the chairmanship and voting in favour of the programme’s recent renewal under Donald Trump’s presidency.
But Johnson is aligned with several members of the conference’s right flank who are ardent critics of the programme and want to see changes.
Johnson joined Jordan in a letter to the FBI last year asking for more information about Section 702 as part of oversight efforts into the agency’s use of FISA powers.
They asked about the number of FBI employees who have access to information acquired under the programme, and about Section 702 compliance measures.
The two wrote that it’s “imperative that Congress be fully informed of the steps the FBI is taking to improve its compliance with the constitutional and statutory parameters of FISA – including Section 702”.