Cybersecurity Policy Report, Durbin’s Surveillance Reform Bill Gets Backing From Privacy Advocates, (Mar 15, 2024)
Privacy and civil liberties advocates are expressing support for legislation that would reauthorize an expiring provision of the Foreign Intelligence Surveillance Act (FISA) with the addition of a narrow warrant requirement.
The Security and Freedom Enhancement (SAFE) Act (S 3961) was introduced yesterday by Sen. Dick Durbin (D., Ill.), chairman of the Senate Judiciary Committee, to break the congressional stalemate over the reauthorization of section 702 of FISA (CPR, March 14).
Section 702, which expires April 19, empowers U.S. intelligence agencies to monitor the communications of foreigners who are overseas and considered national security threats. In practice, however, it often results in Americans’ communications being swept up when an American communicates with a foreign intelligence target, and the Federal Bureau of Investigation has been caught misusing Americans’ data collected under section 702.
The reauthorization debate has split Congress into two camps—one that advocates for restrictions on the FBI’s use of section 702, including a requirement that the FBI obtain a probable-cause warrant before querying the data for information about Americans; and another that agrees with Biden administration officials that a warrant requirement would make the use of section 702 too unwieldy and that views administrative reforms enacted by the FBI as sufficient to address misuse of section 702.
The SAFE Act would require FBI agents to obtain a warrant before accessing the content of Americans’ communications collected under section 702 but not for queries of section 702 data that might indicate the existence of that content.
“To ease the burden on both the government and the courts, this provision only requires the government to obtain [warrants] ... to access the results of a U.S. person query. Because only a small percentage of U.S. person queries return results, this compromise approach dramatically reduces the administrative burden of obtaining court approval,” according to a fact sheet from Sen. Durbin’s office.
Some civil liberties and privacy advocates view the SAFE Act as an adequate compromise even if it falls short of their ideal FISA reauthorization legislation.
The Safe Act is a “carefully crafted bipartisan compromise bill,” Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union, said in a statement. “While this legislation does not include every reform civil liberties groups have been pushing for, it does include meaningful changes that will rein in the government’s warrantless surveillance of Americans and help ensure that our privacy is protected.”
“Credible bipartisan reforms are essential to preventing foreign intelligence activities from disproportionately impacting the privacy and speech rights of Americans—particularly Americans of color and those with ties to communities outside the United States,” Prem Trivedi, policy director of New America’s Open Technology Institute, said in a statement. “The SAFE Act demonstrates that rights-protective surveillance reform is compatible with protecting national security.”
The SAFE Act “takes a pragmatic, measured approach to reform that draws upon a wide range of proposals,” Jeramie Scott, director of the Electronic Privacy Information Center’s Project on Surveillance Oversight, said in a statement. “In doing so, the SAFE Act reflects the broad, bipartisan consensus on reform and offers a clear path forward to reauthorizing Section 702 while ensuring that our rights are protected.”
Alex Marthews, board chairman for Restore The Fourth, said in a blog post that the SAFE Act “deserves our endorsement, and increases the chances of meaningful FISA reforms,” even though it falls short of fulfilling all of the group’s goals.
“The SAFE Act has limitations, as any bill does that leaves the inherently dubious Section 702 structure in place,” Mr. Marthews said. “Civil liberties folks who support this compromise are necessarily accepting that there are many fights that would be left for another day. However, there remains a significant risk that Congress will decide that it’s just easier to do a straight reauthorization of a year or two, and kick the can yet again down the road.”
Because the Senate Judiciary Committee has jurisdiction over surveillance issues, Sen. Durbin is well-positioned to shepherd the bill through committee and onto the Senate floor. Between yesterday and today, the bill picked up three additional co-sponsors, bringing the number to 12, including three Republicans, eight Democrats, and Sen. Bernie Sanders (I., Vt.).
Meanwhile, House Speaker Mike Johnson (R., La.) told Politico that he intended to hold a vote on a stand-alone bill to reauthorize section 702 rather than include reauthorization in an appropriations package or other “must-pass” legislation. “The current plan is to run FISA as a standalone the week after Easter,” he said, according to Politico.
The House has been divided over how to address section 702 reauthorization, with the House Intelligence Committee and House Judiciary Committee openly feuding over whether the FBI should have to obtain probable-cause warrants before accessing Americans’ data collected under section 702, which the Judiciary Committee advocates, or whether less-restrictive measures supported by the Intelligence Committee are enough.
That stalemate derailed efforts by the House Rules Committee in February to bring reauthorization legislation to the House floor (CPR, Feb. 14).
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