Lawmakers push 702 reauthorization requiring warrant to access info on Americans

A bipartisan group of Senate and House lawmakers introduced a bill Tuesday that would require the intelligence community to secure a warrant before tapping into information on Americans swept up during surveillance of foreigners abroad.

Led by Sen. Ron Wyden (D-Ore.), the bill would reauthorize Section 702 of the Foreign Intelligence Surveillance Act with significant reforms – including what one senior White House official called the “red line” of requiring the intelligence community to secure a warrant before peering at Americans’ data.

The sponsors of the Government Surveillance Reform Act bring together lawmakers aligned on few issues beyond privacy, with Sen. Mike Lee (R-Utah) joining in the Senate, and Reps. Andy Biggs (R-Ariz.) opposite Rep. Zoe Lofgren (D-Calif.), flanking speakers in a press conference to roll out the bill.

“Americans understand that it’s possible to confront our country’s adversaries ferociously, without throwing our constitutional rights into the garbage can,” Wyden said at a press conference to roll out the bill.  

“Our Founding Fathers made it clear that if government agencies want to read an American’s private communications, they should get — a — warrant,” he said, emphasizing the last three words.

FISA Section 702 is set to expire at the end of the year if it’s not reauthorized, with Tuesday’s bill one of the first vehicles to set that in motion.

“These authorities exist for good reason. They exist so that we can obtain information on foreign adversaries, not on the American people,” Lee said. 

“We’re not saying no 702. We’re not saying no FISA. We’re saying we need these authorities, but we need to reform these authorities because they’ve been abused.”

In a sign of alarm from the White House and the intelligence community, administration officials cautioned against the bill before its rollout.

“There are some red lines. And one of those red lines is the operationally unworkable and fundamentally inept requirement to go to a court before accessing already lawfully collected information…. This is something we think is both the wrong fit for what we’re doing, and operationally unworkable,” a senior administration official said on a call with reporters before the lawmakers’ press conference to unveil their bill. 

For intelligence officials, securing a warrant could delay them from acting on information in real time. 

“While the statute is very clear that this is collection that can only target non-U.S. persons located abroad, part of its value is to understand if they were trying to reach into the homeland in ways that undermine our national security from within,” they added.

“For us, it remains a red line not to have to go to a court and lose the operational window to stop an assassination attempt to prevent ransomware, to stop a senior government official’s email account from being hacked.”

Beyond the need to secure a warrant, the bill would also prohibit the government from purchasing Americans’ data from brokers, something Lofgren described as closing another loophole for gaining access to Americans’ digital information. 

The race to reauthorize Section 702 has prompted some House Intelligence lawmakers to weigh a short-term extension of the law as a “Plan B” if lawmakers can’t agree on a way forward in time to save the law.

“We’ve just seen so much chaos on the floor. Even in the best of times, obviously 702 is a heavy lift. Pretty much all of the Plan Bs involve a temporary extension because we just — we cannot allow this authority to expire,” House Intelligence Committee Ranking Member Jim Himes (D-Conn.) told The Hill last week.

The senior administration official told The Hill they would be open to a short-term extension of Section 702 if Congress can’t rally around a long-term bill. But they cautioned against thinking lawmakers will face a more favorable environment down the road.

“We also look ahead to 2024 and presumably the legislative landscape the political landscape, doesn’t get any simpler, doesn’t get any easier in 2024,” they said.

“What’s more there is still time on this legislative calendar. We do have seven weeks … . So we start from the same premise as the ranking member, which is this can’t be allowed to expire.”

Sponsors of the reform bill lobbied against any effort to tuck a Section 702 reauthorization in a broader package as the deadline nears.

But Lee also nodded to the White House’s concerns with their bill, saying they shouldn’t be thinking in “a binary on-off switch.”

“It’s understandable that they wouldn’t want 702 to expire. Nonetheless, this is not an expiration we’re calling for. We’re simply saying put some guardrails around it so that it’s harder to violate, and I am confident that the White House and others who may have concerns right now will have a lot fewer concerns once they read it,” he said.