The House released a measure on Feb. 12 that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is meant to target noncitizens abroad but has, at times, swept up Americans in the process.
The legislation makes a series of wide reforms to the FISA spying authority, which has come under increasingly heavy scrutiny since it was last reauthorized in 2018.
Last year, Congress extended the authority—set to expire at the end of 2023—until April 2024. The bill, if passed, would reauthorize the spying authority for a term of five years.
Since its reauthorization in 2018, FISA has consistently made headlines for abuses, leading many staunch privacy rights advocates in Congress to call for wide-ranging reforms—or its abolition.
The most prominent of these abuses came prior to the 2018 reauthorization.
During the Crossfire Hurricane investigation into former President Donald Trump’s alleged links to Russia, it was discovered that the FBI had used FISA authority to spy on his 2016 campaign. A later special counsel report ruled that the entire investigation was unjustified and that the use of FISA against President Trump and his associates was equally unjustified.
In response to this incident, the new legislation would prohibit the FBI or other intelligence agencies from spying on political appointees, whether Senate and non-Senate confirmed, under the authority.
FISA was expanded in 2008, adding Section 702 to the 1978 legislation, vastly increasing its scope.
Under current law, Section 702 data—including Americans’ private data—can be “unmasked” by intelligence agencies, if a superior rules that the unmasking is necessary for national security purposes.
This authority, in particular, has been subject to a series of abuses.
To limit these kinds of abuses in the future, the legislation would also require the Department of Justice to perform an audit on Section 702 queries within 180 days of the search.
A short-term FISA extension was passed in December 2023 despite objections from conservatives and progressives shortly before the program was set to expire on Dec. 31, 2023.
The House Rules Committee is scheduled to debate the bill on Feb. 14.
While the original legislation passed in 1978 was designed to safeguard American civil liberties from abuses of spying powers, the 2008 amendment to the bill, including Section 702, significantly expanded its scope. Under the rules laid out in Section 702, intelligence officials can conduct warrantless searches of communications, including emails, text messages, and phone calls. This extends to communications routed through the U.S. private sector, which were previously protected by privacy law.
However, this program, among the government secrets revealed by Edward Snowden in 2014, has itself been at the center of several high-profile cases of abuse.
Civil liberty groups have protested the act, citing concerns about the potential for abuse. In the past few years, the powers granted to the intelligence community through FISA have been used to investigate American citizens, such as those who were involved in the Jan. 6, 2021, protests.
During a Dec. 12, 2023, press conference, Mr. Johnson spoke at length on the issue, emphasizing the need for reforms but making no comment on the broader dispute over the warrants issue.
“FISA is a very important piece of legislation and Section 702, which would expire at the end of the year, is a really, really important provision because it protects us on the homeland,” he said. “It protects us from terrorist attacks. It’s the tool we use to uncover those plots when they’re being planned, and it’s been very, very effective in that measure.
“That’s why you have conservatives and liberals, progressives, who agree that it’s a really important tool.”
Mr. Johnson referenced abuses of the program, saying he agreed with others that Section 702 needed significant changes.
“What we all also agree on is that it must be dramatically reformed because it’s been abused 287,000 times,” Mr. Johnson said, referencing a recent court report that revealed the number of times the FBI had illegally queried the Section 702-acquired data of American citizens.
Testifying before Congress, FBI Director Christopher Wray reiterated these calls.
“Losing 702 means losing our ability as a country to protect American critical infrastructure and American businesses from those threats,” he said.
Regarding terrorist threats, after the Oct. 7, 2023, Hamas attack on Israel, FISA has become vital, according to Mr. Wray.
“So, the idea that this country would unilaterally disarm and blind itself in our ability to protect Americans from foreign terrorist organizations and Chinese hacking programs makes no sense to me whatsoever,” he said.
Mr. Wray said the FBI has taken responsibility for compliance failures related to FISA and put in place “a whole slew of reforms to address them.”
“The FISA court itself and other outside entities have found that those reforms have had a dramatic impact in terms of improving compliance,” he said. “It’s now at the level of 98.99 percent compliance, and we’re not done. We’re going to keep going at it to push that compliance rate even higher.”
If FISA isn’t renewed, it would be “throwing the baby out with the bathwater,” according to Wray.
“I think we will live to regret it,” he said.
