The Senate intelligence committee this week advanced legislation that renews the overseas internet surveillance program known as FISA Section 702 through 2025.
National security leaders have called the program, which allows intelligence agencies to legally monitor emails and phone calls of foreign nationals outside of the US, an “indispensable tool” and consider its reauthorization ahead of an expiration date at the end of the year a top priority.
Before passing the measure, members voted unanimously in a closed-door session to include an amendment from committee Vice Chairman Mark Warner that would add a layer of judicial oversight to law enforcement’s ability to use information in the surveillance database, an aide said.
Under the amendment, if the FBI searches the Section 702 database for communications of or about a US person and receives a positive result, it would be required to receive a sign-off on the use of the information from the specialized, and secret, FISA court. The FBI would have one business day to present the information they received to the court, and the court would have two days to respond and authorize the search. If the court rejects the FBI’s request, the FBI would not be able to use the results they received and would be disabled from using anything that derived from the results.
The three Democrats who voted against the bill, Sens. Ron Wyden, Martin Heinrich and Kamala Harris, said the privacy protections did not go far enough.
“It has become disturbingly routine for the government to search through the communications of Americans whose information has been inadvertently swept up under this surveillance program,” Heinrich said in a statement. “Searching through the communications of any American should require a warrant before the search takes place.”
An amendment to the committee bill from Sens. Dianne Feinstein and Harris that would have required law enforcement to obtain a warrant proving probable cause from the FISA court to access the content of an American’s communication was voted down, Feinstein’s office said.
The advancement of the intelligence committee bill, the text of which has not yet been released, comes the same day as a group of civil libertarian-minded senators, led by Wyden and Republican Sen. Rand Paul, released their own legislation that sought even starker reform, requiring law enforcement to obtain a probable cause warrant before searching the Section 702 database for an American’s communications.
Law enforcement agencies, like the FBI, regularly search the database for mentions of or discussions that include Americans suspected of being a national security risk.
Trump administration officials in recent weeks have intensified a lobbying campaign seeking a clean and permanent reauthorization of the FISA law program, including an hour-long pitch at a Washington think tank earlier this month from Director of National Intelligence Dan Coats, National Security Agency Director Adm. Mike Rogers and FBI Director Christopher Wray.
Wray met Monday with Feinstein, an FBI spokesman said.
In their public remarks, the officials have argued that any change to the current law would be a threat to national security.
“Any restriction on our ability to access the information that’s already constitutionally collected in our database, I just think is a really tragic and needless restriction. And I just beg the country not to go there again,” Wray said at the think tank.
“Some of the conversations that are going on right now in some of the interest groups and some members of Congress, it sounds eerily similar to what we heard before 9/11” when regulatory barriers blocked law enforcement from useful intelligence, Wray said in a separate speech Sunday in Philadelphia.
What the agencies can do with information on Americans acquired through Section 702 database searches is already restricted by executive branch procedures, but the requirement of a court order meeting a high standard of probable cause would add a further check of independent, judicial oversight to the practice.
It would also make it more difficult and time consuming to obtain the information.
“Warrants are labor intensive,” said Todd Hinnen, the former acting assistant attorney general for national security at the Justice Department. “It requires a great deal of formalization of the information that the government has regarding the criminal conduct or intelligence activity they think the targets involved in.”
Authority of the FISA program falls to intelligence and judiciary committees in Congress, and it’s unclear what the next step towards reauthorization would be. A spokesman for the Senate judiciary committee did not say if the panel would pick up the intelligence committee’s reauthorization bill or if it would write its own.
A separate reauthorization bill introduced by the bipartisan leaders of the House judiciary committee earlier this month went further than the new Senate intelligence version in reforms to privacy protection, proposing that law enforcement obtain a warrant to look at the content of communications of Americans when returned from searches of the Section 702 database in a criminal investigation.
Correction: An earlier version of this story misspelled Todd Hinnen's last name.