Both parties push for FISA reform after intelligence abuses

Compromises on solutions for border security, international aid, federal spending, and more are hard to come by on Capitol Hill. But one policy area has sparked a rare level of agreement: a bipartisan effort to overhaul Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Following a committee hearing on newly proposed legislation on Wednesday morning, Elizabeth Goitein, the senior director of the Brennan Center for Justice’s Liberty and National Security Program, marveled at the cooperation she had just seen.

“I mean a 35-2 vote for the House Judiciary Committee on some of the most far-reaching surveillance-reform legislation we’ve seen in decades? That’s incredible.” Goitein said, following the committee’s hearing. “It tells you how bad things have gotten with abuse of surveillance powers.”

The Judiciary Committee’s proposal is one of three bills in Congress that share the goal of reining in the power that Section 702 grants to the federal government to conduct surveillance without a warrant—authority the intelligence community has routinely overstepped in recent years with few consequences.

According to a report by the House Intelligence Committee, an FBI analyst working under Section 702 authority in 2022 accessed the personal information of 19,000 donors to a congressional campaign on suspicion that the “campaign was a target of foreign influence.” That’s just one example.

Despite the abuses, the law provides a flexible tool that allows the intelligence community to circumvent the traditional warrant process and deter threats in real time. The power is reserved for surveillance of non-“U.S. persons”—and even then, only when there’s a credible security threat.

“Section 702 has informed the U.S. government’s understanding of the Chinese origins of a chemical used to synthesize fentanyl [and] foreign actors’ illicit plans to smuggle methamphetamine across the U.S. border,” the report explains.

Without congressional approval, FISA’s authority will expire on Dec. 31, leaving the intelligence community without one of its chief tools in stopping domestic and overseas attacks.

The House Intelligence and Judiciary committees, along with Sen. Ron Wyden, D-Ore., have each put forward a version of a revised FISA law. Steven Bradbury, a distinguished fellow at the Heritage Foundation and former head of the office of legal counsel at the Department of Justice, said the laws each try to clarify when an intelligence agency can conduct a search under Section 702 and whom the search can target.

“Any intel agency could not do a query on the 702 databases without an individualized order,” Bradbury said, unpacking the Wyden and Judiciary Committee bills. “That’s very broad, and I think in a lot of cases would inhibit national security reviews of potential bad actors in the U.S. that could handcuff the ability of the U.S. to identify emerging national security threats.”

The House Intelligence Committee’s bill would only require warrants for queries about a U.S. person.

A second way to curtail Section 702 would be to alter the definition of “U.S. person.” Currently, the law’s definition includes permanent residents and citizens and protects them against warrantless surveillance unless they pose a credible security threat. The Wyden and Judiciary bills would extend that definition to require warrants for queries targeting anyone in the geographic United States. The House Intelligence Committee’s bill largely maintains the current definition.

Rep. Jerry Nadler, D-N.Y., has been heavily involved with privacy legislation since Section 702 became law in 2008. He worked on the Judiciary Committee’s bill and said it’s time for strong action on both warrants and targets.

“We have to make sure our bill is on the floor, not theirs,” Nadler said. “It doesn’t give nearly the protections our bill does.”

Regardless of which version eventually becomes law, the FISA overhaul has garnered unique support from both parties.

“It’s historic,” Goitein said. “I think there has been a steady progression over the year towards an understanding that serious reform is imperative,”

Goitein believes there’s more work to do, but she’s encouraged.

“The [surveillance] technology keeps getting away from us. It’s a constant race. The faster technology moves, the further behind the law tends to lag. I think we’re seeing a realization of that problem in Congress,” Goitein said.