House Passes Revised FISA Bill Without Warrant Requirement

The House on April 12 passed a revised version of a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) for two years. This came two days after conservatives blocked the advancement of another version of the legislation, saying it didn’t go far enough to protect civil liberties.

The bill passed by the House does not include a warrant requirement advocated for by conservatives and progressives alike after a push to include this as an amendment was defeated in a rare tied vote.

Section 702 authorizes intelligence agencies to conduct warrantless surveillance of foreigners, but it also captures information on Americans with whom the foreign target communicates. This has drawn civil liberty concerns from both sides of the aisle, especially after revelations of expansive misuse by the FBI. The power expires on April 19.

The bill passed by a vote of 273–147. It marks a win for House Speaker Mike Johnson (R-La.) who has sought for months to bring this measure to the House floor.

An amendment by Rep. Andy Biggs (R-Ariz.) that would have forced intelligence agencies to get a warrant to surveil Americans’ data collected as part of standard intelligence activities under Section 702 failed on a tied vote of 212–212 in which Mr. Johnson, who often doesn’t vote, provided the crucial support to kill the amendment. Eighty-four Democrats joined with 128 Republicans to vote for the amendment’s inclusion.

That amendment was also opposed by President Joe Biden, who said a warrant requirement would “rebuild a wall around, and thus block our access to, already lawfully collected information in the possession of the U.S. Government.”

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The bill passed by the House is a modified version of Rep. Laurel Lee’s (R-Fla.) Reforming Intelligence and Securing America Act that would extend the controversial spying authority for two years, a reduction from a five-year extension rejected by the chamber earlier this week.

On Wednesday, 19 Republicans joined Democrats to tank a procedural vote on a previous version of the bill on the basis that it didn’t go far enough to reform the system and protect civil liberties.

The bill would reform Section 702, which passed in 2008 and allows intelligence officials to gather information on foreign actors working outside of the United States.

However, since the bill was narrowly reauthorized by Congress in 2018, a series of abuses have come to light that have thrown the future of the entire process into question.

These issues have divided Congress and spurred the formation of unlikely alliances across party lines on both sides of the issue.

Though there were fewer the next year, nearly 300,000 queries were still discovered.

What’s in the Reform Bill?

In response to these and other reported abuses, Ms. Lee’s bill would make some changes to how information is collected and the safeguards around such actions.

It would primarily strengthen requirements to “ensure that applications to the Foreign Intelligence Surveillance Court … that target United States persons are accurate and complete.”

Other provisions would dramatically cut the numbers of those allowed to perform and authorize FISA queries, which proponents say would help ensure that the law is followed.

Another provision would mandate a flat prohibition on using Section 702 to collect evidence of a crime.

These reforms “will make clear this is an intelligence tool, not a law enforcement tool,” House Intelligence Committee Ranking Member Jim Himes (D-Conn.), a supporter, said during an earlier Rules Committee hearing.

It also strengthens penalties for illegal queries, imposing a fine or up to 10 years in federal prison for violations.

Finally, it would make it easier for Congress to exercise oversight of the program.

With the bill’s passage through the House, it will now go to the Senate, where the same disputes over privacy and national security are likely to follow it.

Should it pass the Senate, it will go to President Biden.

The White House has called the reauthorization of Section 702 without a warrant requirement “critical,” and is widely expected to approve the legislation.