Congress Prepares To Reauthorize a Warrantless Domestic Spying Program the FBI Abused

Congress is gearing up for a potential showdown over the expected reauthorization of a warrantless domestic spying program that's been misused by the FBI and widely criticized by civil libertarians.

That surveillance program—authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA)—was created after 9/11 with the intention of tracking foreign spies and potential terrorists. But it has predictably morphed into a way for law enforcement agencies to get a warrantless peek at Americans' phone records, emails, and other electronic communications—the FBI ran more than 3.3 million queries through the Section 702 database in 2021, according to an annual transparency report.

With the program set to expire at the end of this year, Congress has a rare opportunity to reform Section 702 by, at the very least, prohibiting law enforcement from using it to snoop on Americans. So far, that doesn't seem to be happening.

The Senate voted Thursday to advance the annual National Defense Authorization Act (NDAA), and the 3,000-page bill contains a "clean" reauthorization of Section 702, according to Sen. Mike Lee (R–Utah), a longtime critic of the surveillance program.

"After all we've learned about the FBI in recent years, the fact that some members of Congress are still willing to reauthorize FISA 702 without reforms—not even a warrant requirement for "backdoor" surveillance of Americans—makes me wonder if they're illiterate," Lee posted to X (formerly Twitter) on Thursday.

Lee says he intends to vote against the NDAA when it comes to the Senate floor for a final vote. He likely won't be the only Republican to do so, but rolling the Section 702 reauthorization into the larger military spending bill means it will be difficult to prevent its passage.

Instead, the fight will be over the language that gets added to the NDAA. While the Senate is moving forward will full reauthorization, there are competing proposals drafted in the House.

The House Judiciary Committee approved a bill on Wednesday to reauthorize Section 702 with the added requirement that the FBI and other intelligence agencies obtain a warrant before using the program to obtain information about Americans.

"The overwhelming, bipartisan vote in favor of this legislation confirms a mutual interest in protecting our Fourth Amendment privacy rights from rogue intelligence actors," Rep. Andy Biggs (R–Ariz.), chairman of the House subcommittee on federal surveillance issues, said in a statement. "Any effort to stall consideration or pass a clean extension of the current FISA authorities is a punishment of the American people."

However, the House Intelligence Committee passed its own version of a Section 702 reauthorization on Thursday. That bill would only require that the FBI establish probable cause before searching the Section 702 database for information about Americans, Roll Call reported.

In a letter to members on Thursday, Speaker of the House Mike Johnson (R–La.) promised to bring both bills to the House floor next week to give lawmakers "a fair opportunity to vote in favor of their preferred measure."

With that possible showdown looming, lawmakers should keep in mind that Section 702 has vacuumed up so much information about Americans that the full scope of the program can't even be quantified, as Sharon Bradford Franklin, chair of the Privacy and Civil Liberties Oversight Board, an independent executive branch agency responsible for advocating on behalf of Americans' rights in national security matters, told a House committee in April.

When Section 702 was approved in 2008, it removed older provisions of the FISA law that required the government to obtain a warrant from the special FISA court before wiretapping communications between Americans and foreigners. Agencies must obtain permission from the FISA court before conducting any surveillance, but the court effectively rubber-stamps all requests and does not review specific targets.

As a result, "vast quantities of our communications are still searched and amassed in government databases simply because we are in touch with people abroad," explains the American Civil Liberties Union (ACLU). And the number of foreign targets keeps growing. There were 89,138 targets for Section 702 collection in 2013, the first year that the Office of the Director of National Intelligence released a transparency report about the Section 702 program (in response to outrage generated by Edward Snowden's leaks about the spy program's uses). That figure had climbed to 246,073 by 2022. More foreign targets mean more "incidental" collection of Americans' communications, and a larger database for domestic law enforcement agencies, aided by the FBI, to sift through.

There's also evidence that the FBI improperly used Section 702 databases to spy on Americans involved in the George Floyd protests, the January 6 riot, and in less high-profile situations. A Foreign Intelligence Surveillance Court report unsealed in May showed that the FBI improperly used its warrantless search powers more than 278,000 times during 2021 alone.

The FBI changed its internal policies regarding the Section 702 database in 2022, but those reforms could be easily reversed unless Congress takes more serious action. The White House's Intelligence Advisory Board has recommended reforming Section 702, and called the FBI's internal changes "insufficient to ensure compliance and earn the public's trust," as Reason previously reported.

Congress will have a rare opportunity next week to rein in the federal government's warrantless spying on Americans' communications. It's an important fight, and one that's long overdue.