Cybersecurity Policy Report, Senate Prepares to Debate House Surveillance Bill, (Apr 16, 2024)
The Senate is preparing to consider legislation adopted last week by the House that would reauthorize provisions of the Foreign Intelligence Surveillance Act (FISA) that are due to sunset on Friday.
Senate Majority Leader Chuck Schumer (D., N.Y.) today filed a cloture motion to enable the Senate to begin consideration of the Reforming Intelligence and Securing America Act (RISAA) (HR 7888).
RISAA would reauthorize section 702 of FISA, which empowers U.S. intelligence agencies to monitor the communications of foreigners who are overseas and considered national security threats.
Some lawmakers and outside groups have expressed opposition to RISAA over provisions that implicate the privacy and civil liberties of Americans. But Sen. Schumer and Senate Minority Leader Mitch McConnell (R., Ky.) have both expressed support for RISAA.
In remarks on the Senate floor yesterday, Sen. McConnell called section 702 “an essential authority America’s law enforcement and intelligence professionals rely on to monitor and mitigate serious threats.”
Sen. McConnell expressed opposition to proposals that would require federal agencies, particularly the Federal Bureau of Investigation, to obtain a probable-cause warrant before searching communications collected under section 702 for information about Americans.
Americans’ communications are swept up under section 702 when they communicate with a foreign intelligence target, and the FBI has been caught improperly searching data collected under section 702 for Americans’ communications.
An amendment that would have imposed a warrant requirement was offered last week on the House floor and failed by a 212-212 vote (CPR, April 12). A similar amendment is likely to be offered in the Senate.
RISAA already contains adequate reforms, including the codification of new administrative rules that the FBI put in place to curb agents’ misuse of the section 702 database, Sen. McConnell said.
RISAA “places firm parameters on the FBI’s ability to query this database of lawfully-collected foreign intelligence for communications that might involve US persons, either as a target or an asset of a foreign terrorist or intelligence operative,” Sen. McConnell said.
“Let me be clear: the data collected under Section 702 is collected lawfully. It is entirely reasonable under the Constitution. Any incidental collection of communications by or about U.S. persons is also reasonable,” he said.
“Every court that has looked at that question has said so, and they’re right. Misguided efforts to require a criminal-law warrant to sort and organize those data on U.S. persons would end the ability of the FBI to keep America and Americans safe,” he added.
Biden administration officials have urged Congress to reauthorize section 702 without imposing a warrant requirement, which they say would undermine their ability to quickly discover whether foreign intelligence targets have American co-conspirators.
Jake Sullivan, the White House national security adviser, yesterday called on the Senate to quickly adopt RISAA to prevent the government’s section 702 authorities from lapsing.
“The Reforming Intelligence and Securing America Act ensures that the Intelligence Community has the tools that it needs to identify and disrupt threats to the American people from hostile nation states, terrorist organizations, hackers, spies, and more,” Mr. Sullivan said in a statement.
“It also includes some of the most significant reforms in the history of FISA to strengthen oversight of how the authority is used and to protect privacy,” he added. “We encourage the Senate to swiftly pass this bill before the authority expires on April 19.”
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