Cybersecurity Policy Report, House to Try Again to Advance Surveillance Reform Bill, (Apr 8, 2024)

By Tom Leithauser

House leadership is planning to ask members to vote this week on a Foreign Intelligence Surveillance Act (FISA) reauthorization bill that lacks the privacy and civil liberties reforms supported by lawmakers from across the political spectrum.

The House Rules Committee is set to meet tomorrow to consider the Reforming Intelligence and Securing America Act (RISAA), which would reauthorize section 702 and other provisions of FISA prior to their scheduled April 19 sunset. The meeting is scheduled to begin at 4 p.m. in Room H-313 of the Capitol.

Section 702 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. Some of those communications wind up in a Federal Bureau of Investigation database that FBI personnel can query under certain circumstances.

RISAA is likely to face opposition from House members who want to require the FBI to obtain a probable-cause warrant before using search terms associated with a “U.S. person,” defined as an individual in the U.S. or a U.S. citizen abroad, to search a database of communications collected under section 702.

RISAA would codify some of the administrative changes enacted by the FBI to address the bureau’s previous misuse of the section 702 database and implement additional reforms to provide more accountability and transparency in the government’s use of its surveillance authorities. It would prohibit the FBI from querying the section 702 database “to find and extract evidence of criminal activity” but would not impose a warrant requirement on the FBI when searches focus on national security threats.

The Rules Committee’s previous effort to bring a version of RISAA (HR 7320) to the House floor was abandoned in the face of opposition from lawmakers who threatened to sink the bill unless it included a warrant requirement (CPR, Feb. 14). That scenario seems likely to play out again unless the committee permits RISAA’s opponents to offer an amendment to require warrants. The committee has not yet begun to accept amendments to the bill.

House Speaker Mike Johnson (R., La.) implored House members in a “dear colleague” letter Friday to support RISAA, which he said contained “the most significant set of intelligence reforms since FISA was originally enacted in 1978.”

“The RISA Act contains 56 specific reforms that will establish new procedures to rein in the FBI, increase accountability at the Foreign Intelligence Surveillance Court (FISC), impose penalties for wrongdoing, and institute unprecedented transparency across the FISA process so we no longer have to wait years to uncover potential abuses,” Speaker Johnson said.

“It is critically important that we succeed in passing these reforms next week because the April 19th expiration of FISA’s Section 702 authority is quickly approaching. If our bill fails, we will be faced with an impossible choice and can expect the Senate to jam us with a clean extension that includes no reforms at all. That is clearly an unacceptable option,” he added.

To muster support for the bill, Speaker Johnson has scheduled a classified briefing on Wednesday for House members and plans to discuss the bill that same day at the Republicans’ weekly conference meeting, he indicated.

House Intelligence Committee Chairman Mike Turner (R., Ohio) expressed support for RISAA over the weekend on CNN. Rep. Turner’s committee previously approved a FISA reauthorization bill that closely resembles RISAA (CPR, Dec. 7, 2023).

Rep. Turner said he expected the House to pass RISAA and disputed concerns that it would allow the FBI to continue to engage in “warrantless” surveillance of Americans.

“Those individuals who say that this is a warrantless search of Americans' data are just not telling the truth,” he said. He noted that section 702 enabled the U.S. government to track foreign threats. Americans who communicate with malign foreign actors should expect to have those communications monitored and collected, he said.

“If you're an American and you're corresponding with ISIS ... your communications are going to be captured,” he said. “All Americans would want us to try to make certain that we keep ourselves safe from these ... outside terrorist groups and organizations.”

“I think that those who mischaracterize this are [a] small [group] compared to those who understand that this goes to the heart of our ability to get intelligence,” he added. “It allows us to be able to keep Americans safe. This is not warrantless surveillance of Americans.”

Rep. Turner’s view was challenged by a coalition of 32 privacy and civil liberties groups last week in a letter to Speaker Johnson and House Minority Leader Hakeem Jeffries (D., N.Y.). “RISAA is carefully crafted to preserve the status quo, not to enact the serious privacy protections for which most Americans and members of Congress are calling,” the groups said.

“RISAA was introduced after a months-long discussion between the House Committee on the Judiciary and the House Permanent Select Committee on Intelligence (HPSCI) over their competing bills, the Protect Liberty and End Warrantless Surveillance Act, H.R. 6570, and the FISA Reform and Reauthorization Act, H.R. 6611,” the groups noted.

The groups said they were told that the “agreed upon path” for House consideration of FISA reauthorization “was to bring RISAA to the floor—with the Judiciary and Intelligence committees both having the opportunity to offer three amendments for each side.”

“Members of the Judiciary Committee agreed to support it only if members had the opportunity to vote on key amendments, including those to 1) close the backdoor search loophole that agencies use to perform warrantless searches for Americans’ private communications in Section 702 databases, and 2) close the data broker loophole that intelligence and law enforcement agencies use to buy their way around constitutional and statutory protections for Americans’ sensitive information,” they said.

“House Members across the political spectrum are eager to vote for legislation that reforms Section 702 of the Foreign Intelligence Surveillance Act (FISA), and moving forward with only a vote on RISAA would deprive them of that opportunity,” they added. “Blocking off votes on critical issues that have been central to the past year’s debate over FISA would harm Americans’ privacy, as well as needlessly threaten Section 702’s future viability.”

The letter was signed by, among others, the American Civil Liberties Union, the Brennan Center for Justice, the Center for Democracy & Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Free Press Action, and New America’s Open Technology Institute.

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