This article first appeared at Just Security.
(Editor’s Note: This is part of a series on the FISA Section 702 reauthorization and reform debate.)
With Section 702 of the Foreign Intelligence Surveillance Act (FISA) set to expire on April 19, Congress once again finds itself faced with the decision whether to reform and reauthorize the controversial law or to let it expire. While Speaker of the House Mike Johnson has promised to hold a vote on a Section 702 bill the week of April 8, he is running short on time to broker a compromise between members of the House Judiciary Committee (HJC), who are advocating for strong surveillance reforms, and members of the House Permanent Select Committee on Intelligence (HPSCI), who favor something much closer to the status quo. In the absence of an agreement, Johnson has indicated that he may bring to the floor the Reforming Intelligence and Securing America Act (RISAA), a deeply flawed bill that would fail to prevent the worst abuses of Section 702 and includes provisions that would actually weaken surveillance oversight.
Bringing RISAA to the floor without any opportunity to improve the bill would be a profound betrayal of the 75 percent of Americans who want meaningful surveillance reforms. Fortunately, Johnson has other options. He should schedule a floor vote on the bipartisan Protect Liberty and End Warrantless Surveillance Act (Protect Liberty Act), which passed out of HJC, the committee of primary jurisdiction over FISA, by a vote of 35–2. Alternatively, he could move forward with a compromise bill: the bipartisan Security and Freedom Enhancement (SAFE) Act. Failing that, he could resurrect a prior deal, scuttled by HPSCI, that would allow members to vote on RISAA and amendments that would implement major surveillance reforms.
The Push for Reforms
Section 702 allows the government to collect the communications of non-Americans located abroad without a warrant. (We use “Americans” as a shorthand for the statutory term “United States persons,” which is defined to include U.S. citizens and lawful permanent residents.) The provision was intended to make it easier for the government to spy on foreign terrorists, but the surveillance inevitably captures Americans’ private phone calls, emails, and text messages, too. Concerned about this infringement of Americans’ privacy, Congress directed intelligence agencies to minimize the retention and use of this “incidentally” collected information.
But intelligence officials still routinely search through Section 702-acquired data looking for Americans’ communications. Agencies conduct roughly 200,000 of these “backdoor” searches for Americans’ private communications each year. Moreover, they have frequently abused this power. Examples in recent years include baseless searches for the communications of racial justice protesters, members of Congress, crime victims, journalists, and political donors, among many others. These abuses have caused outrage in Congress, and many lawmakers have vowed not to reauthorize Section 702 without “significant reforms.” But some surveillance hawks do not share this bipartisan consensus and are working hard to re-up the law without meaningful changes.
Before Section 702 was extended until April 19 by the National Defense Authorization Act for Fiscal Year 2024 (NDAA), HJC and HPSCI each marked up a bill to reauthorize the law. (A third bill, the bipartisan Government Surveillance Reform Act of 2023 (GSRA), was not acted on by either committee.) HJC’s bill was the Protect Liberty Act. Among other reforms, it would:
- Close the backdoor search loophole by requiring the government to get a criminal warrant or FISA Title I order before searching its Section 702 databases for Americans’ information, with exceptions for exigent circumstances, consent, and certain cybersecurity-related searches;
- Close the data broker loophole, under which intelligence and law enforcement agencies are evading constitutional and statutory privacy protections by purchasing Americans’ sensitive information from commercial data brokers; and
- Improve the workings of the Foreign Intelligence Surveillance Court (FISC) by empowering amici — outside experts who present a perspective other than the government’s — to more fully represent the public’s interests before the court. This provision incorporates the Lee-Leahy amendment, which passed the Senate by a vote of 77–19 in 2020.
In contrast, HPSCI’s bill, the misleadingly named FISA Reform and Reauthorization Act of 2023, would do nothing to prevent the worst abuses of Section 702. For instance, as explained further below, it ends the practice of querying Section 702 data for American’s information to find evidence of a predicated crime unrelated to national security, but this is such a tiny percentage of backdoor searches as to render the provision meaningless. And in some regards, the bill would actually expand warrantless surveillance, as we have explained elsewhere.
After Congress extended Section 702 through the NDAA, Speaker Johnson sought to forge a deal between HJC and HPSCI Republicans on Section 702. The result was RISAA, a bill comprised primarily of the provisions of the HPSCI bill that were least offensive to surveillance reformers — provisions that, as discussed below, would not prevent misuse or abuse of the authority. Under the terms of the agreement Johnson brokered, HJC and HPSCI would each have an opportunity to offer three amendments to RISAA, enabling the full House to decide whether and to what extent it wanted reforms.
As the time for the vote approached, though, HPSCI balked. Apparently attempting to sway congressional sentiment, the committee disseminated information to all members of the House regarding Russia’s desire to develop a space-based nuclear weapon system, and then credited Section 702 for providing the intelligence. When that failed to undermine support for surveillance reforms, HPSCI backed out of the Johnson-brokered deal, refusing to submit its three amendments and threatening to tank a procedural vote needed to bring RISAA to the floor. Johnson blinked, canceling the vote in the middle of a Rules Committee hearing that would have moved RISAA to the floor.
But even with the deal temporarily dead, RISAA remains important, as Speaker Johnson has indicated that it is the bill he intends to bring up when Congress returns from recess. For this reason, it is important to understand what RISAA does — and why, on balance, it would make matters worse rather than better unless substantially amended.
The Problems with RISAA
RISAA reflects points on which HJC and HPSCI Republicans could agree. The vast majority of the text is copied directly from HPSCI’s bill, which would be broadly ineffective at preventing abuses. Even where the provisions would be marginally helpful, they are in almost every case substantially weaker than analogous provisions in the Protect Liberty Act or the GSRA. For instance, RISAA requires FBI agents applying for FISC orders to notify government attorneys of any exculpatory information, while the Protect Liberty Act and the GSRA require that the FISC be notified as well.
RISAA’s marquee reform is a prohibition on the FBI conducting backdoor searches intended to find evidence of a crime unconnected to foreign intelligence. But such searches represent a vanishingly small number of backdoor searches overall. Of the more than 200,000 backdoor searches intelligence agencies performed in 2022, for example, this prohibition would have stopped them from accessing the contents of Americans’ communications just twice. Moreover, the most egregious abuses of Section 702, including the baseless searches mentioned above for the communications of 141 Black Lives Matter protesters, sitting members of Congress, and 19,000 donors to a congressional campaign, were all justified as having an ostensible foreign intelligence purpose.
RISAA also would codify recent changes the FBI has made to its internal procedures governing the use of Section 702. But those changes have already proven wholly inadequate. By the government’s own numbers, the FBI continues to commit several thousand violations of the existing rules governing backdoor searches every year. And these violations continue to include alarming abuses, including recent searches for the communications of a U.S. Senator, a state senator, and a state court judge who contacted the FBI to report a local police chief’s apparent civil rights violations.
While the provisions addressing backdoor searches would maintain an unacceptable status quo, other provisions of RISAA would actually weaken oversight of Section 702 surveillance. In particular, rather than bolstering the role of FISC amici, as the Protect Liberty Act and GSRA do, RISAA would place a new restriction on amici, limiting them to addressing only those issues identified by the FISC. But of course, one of the main purposes served by amici is to identify issues that judges may not have considered — not merely to serve as additional law clerks briefing issues of which judges are already aware. Moreover, RISAA would require amici, “to the maximum extent possible,” to have expertise in both civil liberties and intelligence collection, a requirement that could heavily weight the scales in favor of selecting former government attorneys as amici.
One particularly objectionable provision of RISAA creates special protections for members of Congress. The bill would prohibit the FBI from performing certain “defensive” searches (searches intended to identify possible targets of a foreign threat) for a member of Congress without first obtaining that member’s consent. This protection would be available only to lawmakers, not to ordinary Americans.
Without amendment, RISAA is wholly inadequate to prevent abuses of Section 702 and would weaken oversight of surveillance in key respects. However, Speaker Johnson has other options that would allow the House to consider real reforms.
The Possibility for Compromise
Speaker Johnson’s most obvious path forward is to do what he should have done from the beginning: schedule a vote on the Protect Liberty Act. That bill passedout of HJC, the committee of primary jurisdiction, by a vote of 35–2. It enacts significant reforms that are overwhelmingly supported by the American public. And perhaps most importantly for Johnson, it stands a significant chance of becoming law, as each of its key reforms has previously earned majority supportin either the House or the Senate. Johnson could recognize and preserve HPSCI’s interests by giving the committee’s leaders the opportunity to offer amendments to the bill.
But if Johnson’s preferred path forward is to start with a compromise vehicle, he could use the bipartisan Security and Freedom Enhancement Act of 2024 (the SAFE Act), recently introduced by Senators Dick Durbin and Mike Lee, as a model. Drawing inspiration from many of the Section 702 bills that have already been introduced, the SAFE Act charts a careful middle course that would significantly advance Americans’ privacy rights while accommodating certain concerns expressed by intelligence agencies.
Like the Protect Liberty Act, the SAFE Act closes the backdoor search and data broker loopholes and shores up FISA’s amicus provisions. But while the amicus reforms are the same changes from the Lee-Leahy amendment that were included in the Protect Liberty Act, the backdoor search and data broker loophole fixes are both significantly different.
In contrast to the Protect Liberty Act, which requires the government to obtain a court order before performing a backdoor search, the SAFE Act has a “point of access” warrant requirement: The government could perform the search without a court order, but it would have to get court approval before accessing the results of that search. Because backdoor searches of Section 702 data return results less than two percent of the time, this modification should allay the government’s stated concerns that a warrant requirement for all searches would create an undue burden on the government and the courts.
The SAFE Act’s data broker provisions, too, are intended to accommodate concerns expressed by the government. The Protect Liberty Act incorporates the Fourth Amendment Is Not for Sale Act, which prohibits the government from purchasing certain sensitive information about Americans. The SAFE Act, however, incorporates the data broker provisions from the GSRA, which give the government substantially more flexibility when acquiring commercial data but include strict limits on its use.
In these and other provisions, including many drawn from the HPSCI bill and its companion in the Senate, the SAFE Act effects what Senators Durbin and Lee refer to as a “pragmatic” compromise that protects both Americans’ privacy and national security. If Johnson is not willing to bring the Protect Liberty Act to the floor, the SAFE Act would be a reasonable fallback.
As a last resort, Johnson could resurrect the deal he brokered in February to bring RISAA to the floor with the opportunity for reformers to offer amendments. While that move is not the first choice for either camp, it would give members a chance to decide for themselves whether genuine surveillance reforms should become law. In a recent letter to House leadership, 42 members, including many of the cosponsors of the Protect Liberty Act, indicated that they would support a legislative vehicle that allowed members to vote on closing the backdoor search and data broker loopholes — even if that vehicle was not their preferred bill.
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Congress once again has an opportunity — and an obligation — to enact much-needed surveillance reforms to protect Americans’ privacy while ensuring that intelligence agencies retain the tools they need to safeguard national security. It can accomplish this task by April 19, but only if Speaker Johnson recognizes that RISAA on its own does not constitute reform legislation. Good alternatives are available, and Johnson should choose one of them.
