A bipartisan Senate duo is pushing to require a warrant before accessing information on Americans obtained by the government through foreign spying activities, reigniting a battle that failed with a tie vote in the House.
The amendment from Senate Judiciary Chair Dick Durbin (D-Ill.) and Sen. Kevin Cramer (R-N.D.) largely mirrors a similar amendment seeking to add a warrant requirement to Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 only permits the government to spy on foreigners located abroad. But Americans who communicate with targets have those interactions swept up in the course of operations.
A contentious debate on the warrant provision led to a 212-212 vote in the House. While proponents see a warrant requirement as a way to protect Americans’ Fourth Amendment rights, opponents — including the White House and the intelligence community — say it would gut the spy tool and stop law enforcement from acting on information in real time.
“I have sat through numerous classified briefings on Section 702 queries and listened carefully to the government’s concerns about having to obtaining court approval in order to review the contents of Americans’ communications,” Durbin said in a statement.
“Our bipartisan amendment accounts for these concerns by providing exceptions to the warrant requirement for emergencies or cybersecurity attacks, or where an American consents to the search. This will ensure that there will not be any delays that jeopardize national security. But if the government wants to spy on the private communications of Americans, they should be required to get approval from a judge — just as our Founders intended.”
The intelligence community has suggested the provision would be unworkable, and the Biden administration swiftly came out swinging against the amendment, calling it “a reckless policy choice contrary to the key lessons of 9/11 and not grounded in any constitutional requirement or statute.”
“The amendment outright bars the government from gaining access to lawfully collected information using terms associated with U.S. persons. Exceptions to that prohibition are narrow and unworkable. They are insufficient to protect our national security,” the Biden administration wrote in a one-pager that was distributed to senators.
“The emergency exception for imminent threats of death and serious bodily harm is so narrowly limited that the criteria would almost never be met. Without reviewing the communications returned by a query, an analyst would not know whether a threat meets the exception.”
Rep. Jim Himes (Conn.), the top Democrat on the House Intelligence Committee, noted that in many cases, agencies like the FBI are using the 702 database to ferret out information on potential threats — information that would likely be insufficient to get a traditional warrant.
“Say a member of Congress has been discussed by Chinese intelligence officers. There’s no real worry that the member of Congress is engaged in a crime. But obviously, our intelligence community would like to know why Chinese intelligence officers are talking about a member of Congress,” Himes said when the House was set to consider the warrant requirement.
“If we pick up that an ISIS leader is talking to an individual in Los Angeles, who is by definition a U.S. person, we have no idea why that conversation is occurring. It could be a family member or a friend. So you cannot go to a judge and say, ‘We have no idea why this communication is occurring, but we want you to issue us a probable cause warrant.’ That is why the administration says the passage of a warrant requirement would shut this program down.”
A U.S. intelligence official offered another example, citing a case where the CIA was able to alert partners of an incoming shipment of fentanyl precursors — information they gleaned just 48 hours before it arrived at the U.S. port and information they would not have derived without reviewing information from American sources.
Still, some argue the provision is needed to curb abuse of the 702 database, particularly after the Foreign Intelligence Surveillance Court found the FBI improperly used the tool roughly 278,000 times over several years.
“Section 702 of the Foreign Intelligence Surveillance Act has been abused and any reauthorization demands we further protect Americans’ Fourth Amendment rights. Preventing the intrusive and all too often corrupt federal government from warrantless access to private communications is crucial to preserving civil liberties and the Fourth Amendment rights of every American,” Cramer said.
FBI queries of U.S. citizens have dropped dramatically in recent years after the agency instituted reforms and made a technical fix to the search platform, which previously opted agents into searching the 702 database.
Intelligence leaders, however, have said the FISA 702 reauthorization bill makes substantial reforms that will shift the program.
The bill includes a number of reforms, including one that would drastically limit the number of personnel who can sign off on any queries of the 702 database involving those in the U.S., and another that would require an after-the-fact audit for all U.S. person searches.
“It is best understood as the most comprehensive set of reforms in the history of the 702 program. This is a true reform bill that will change the way we do business, especially the FBI, in a way that will be more protective of civil liberties and privacy,” a senior Justice Department official previously told The Hill.
Updated: 5:36 p.m.