Washington Wednesday: FISA reforms create new concerns

LINDSAY MAST, HOST: It’s Wednesday the 1st of May, 2024. This is WORLD Radio and we thank you for listening. Good morning, I’m Lindsay Mast.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Washington Wednesday.

Before Congress passed foreign aid last month, it renewed the Foreign Intelligence Surveillance Act, or FISA. Among other things, Section 702 of that law allows U.S. intelligence agencies like the FBI to view a database of private communications of non-American targets without getting a warrant.

MAST: Congress renewed the law until 2026 and made a few changes. Those include greater restrictions on who can use the tool and stronger penalties for misusing it. But Congress included some concerning expansions of surveillance power.

REICHARD: Here now to talk about these changes is Steve Bradbury. He’s a distinguished fellow at the Heritage Foundation and a former official in the Trump and Bush administrations. Steve, welcome!

STEVE BRADBURY: Thank you. Good to be here.

REICHARD: Well, let's start with this. Can we agree that these changes include good reforms and also some bad reforms? And if so, broadly speaking, what are those good and bad aspects?

BRADBURY: Yes, I definitely agree with that, Mary. It definitely toughens up the oversight, the penalties for misuse of these powerful tools, and put some good restrictions, particularly on the FBI's use of the program. The bad things, though, include some doozies. For one thing, they've expanded the definition of what kinds of service providers might receive court orders to cooperate with this program. And now under a provision that was added to this bill, the definition includes any service provider that has access to equipment on which the communications may be stored or carried. And it's really hard to tell how far that could sweep. It's a little ironic that in all of this debate with all of the abuses of the FBI and with the intelligence community, and all this discussion about narrowing and restricting the program, here we have a provision that was added that greatly expands it potentially. But we'll have to see how it goes.

REICHARD: What is something that the U.S. government cannot do now that it could do before?

BRADBURY: Well, there are restrictions on how the FBI can access this data. And previously, there have been widespread abuses. The FBI on 278,000 occasions, according to the FISA court, improperly dipped into this database for purposes having nothing to do with national security. And the FBI made arguments that this was okay under pre-existing law. There's a debate about that. It's now much clearer that they cannot do that, under this new statute, as amended, they can only use this database for authorized national security investigations. So that's a positive step. It's a narrowing. I think some of us would like to have seen the FBI completely removed from the program altogether, and put back in the box of traditional law enforcement, rather than national security. Congress didn't go in that direction. But they did put additional handcuffs on the FBI's ability to get access to this data and make use of it.

REICHARD: Well, let's bring this down to the real concrete specific, what is a concrete example that an average American might experience as a violation of his or her rights under the way the reforms are now written?

BRADBURY: Well, this program is targeted, as you mentioned, at foreigners outside the United States, not at U.S. citizens. However, whenever one of those foreigners-and there are a lot of them under surveillance, and this program-communicates with anybody inside the U.S., that communication gets swept up into this program as well. So there will be communications of Americans, to the extent they are communicating with any of these foreign nationals outside the U.S., and the question then is, how will that data be used? Who could have access to it? And it may be communications of ordinary Americans that are swept up in this, and so that's the concern. And the question, then is, how easy is it to get access to that, those communications and what can they be used for?

REICHARD: There were previously two versions of this bill, one from the House Judiciary Committee and another from the House Intelligence Committee. Back in February, you said the Judiciary version went too far to protect foreign nationals who are living here illegally, while the Intelligence version didn’t do enough to constrain the FBI from abusing FISA. Where did the final version of the bill land, compared to earlier versions?

BRADBURY: Yeah, it does land somewhere in the middle. The previous version from the House Judiciary would have required a warrant in order to dip into that database and make use of it. But the warrant requirement wasn't limited to information about American citizens and lawful permanent residents of the U.S., but included any information about a foreign national who might have been inside the U.S. And unfortunately, right now we have a terrible situation with an open border on the South because of the current administration. We really have no idea how many foreign nationals are in the U.S. who may pose a danger to the United States. And so we didn't think that right now was the time to create extra protections for foreign nationals in the U.S. So that's how we thought the Judiciary bill had gone too far. 

The House Intel bill hadn't gone far enough at all, because it still allowed the FBI pretty much unlimited discretion to do national security. What Congress ended up with was additional restrictions and squeezing down of the FBI's role. They ended up not adopting any warrant requirement at all. You may have heard there was an amendment at the end of the process in the House to include a warrant requirement for collecting information out of this data that relates to American citizens or lawful permanent residents of the U.S. We thought that was a sensible compromise proposal for a warrant requirement. Unfortunately, that failed in the House on a vote of 212 to 212. And, unfortunately, the Speaker of the House, Mike Johnson, cast the deciding vote to make it a against the proposal and so it failed in the House. And so that's not in the final bill.

REICHARD: Well, this is all very alarming. I'm wondering, could you reassure us with what checks are in place to make sure the government doesn't infringe on our rights with all this expanded surveillance?

BRADBURY: What happens is the check is usually after the fact. So there will be oversight, there will be audits of how the program is used. It's also possible that a contractor service provider that receives an order like this could challenge it before the FISA court and I imagine if they try to expand the universe of entities that may receive these orders significantly, you'll see a lot of legal challenges to that before the FISA court, and that could be another process. So there's the FISA court is a check, Congress through its oversight mechanism is a check, but really, at the end of the day, there's no substitute for a strong president, attorney general, FBI director who are correctly focused on ensuring the protection of Americans’ constitutional rights and civil liberties in the way these powerful tools are used. And if we lose that check on the front end, in terms of the exercise of discretion, any check on the back end is a distant second, in terms of its, you know, effectiveness and importance.

REICHARD: Any other aspect of the story that you think warrants more attention?

BRADBURY: Well, I'm grateful that in the final process of approval or reauthorization of this powerful tool, Congress reduced the period of time for which they're reauthorizing the program from five years down to two. As you mentioned, it will be up for reauthorization again in 2026. So that means right in the middle of the next president's term, we'll go through this debate again. And if we have a new president at that time, then I think we can take a fresh look at this and reassess how much this tool is needed and whether further reforms are appropriate.

REICHARD: Steve Bradbury is a distinguished fellow at the Heritage Foundation and a former official in the Trump and Bush administrations. Steven, thank you for your time!

BRADBURY: Mary, thank you. Appreciate it.

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