After Durham Report Excoriates FBI for Abuse of Power, GOP Won’t Reauthorize FISA Spy Law Without Reforms
‘Reforms are necessary,’ Representative Mike Turner told the Washington Examiner. ‘We will be taking up the issue of reforms, and they will not be limited to 702 itself.’
The chairman of the House Intelligence Committee, Mike Turner, said the GOP won’t back reauthorizing a provision of the Foreign Intelligence Surveillance Act without major changes, signaling a bipartisan coalition in support of modifying the act that allows for spying on Americans with the approval of a secret court.
Mr. Turner has aligned himself with Representatives Darin LaHood and Mike Garcia in pushing for changes to FISA, and its Section 702 in particular, citing Special Counsel John Durham’s investigation of the FBI as a reason.
“We have been very clear on a bipartisan basis with the intelligence community and the FBI that there is no support in Congress for a clean reauthorization of 702,” Mr. Turner told the Washington Examiner.
Mr. Turner is aligning himself with House Minority Leader Hakeem Jeffries as well as other Democrats who have been critical of the power FISA gives the intelligence community. President Biden, however, has pushed for renewal.
“Reforms are necessary. We will be taking up the issue of reforms, and they will not be limited to 702 itself,” Mr. Turner said. “It will encompass both abuses that we are aware of and abuses that are now in the public domain as a result of disclosure and Durham.”
The provision in question grants broad authority to the FBI to collect data on communications from foreign nationals without a warrant. However, critics say it has been abused and used as a backdoor to spy on Americans.
The coming fight over reauthorization will be the first time critics of the law will have serious leverage since the passage of Section 702 in 2008.
In past reauthorizations, the section had support from leadership in both Houses of Congress and the White House. In 2018, for example, the reauthorization had the support of Speaker Pelosi, the Senate majority leader, Mitch McConnell, and President Trump.
Mr. Biden and his administration have pushed for another reauthorization without modification. However, based on the growing bipartisan coalition in support of changing the section, and the broader act, it looks increasingly like the administration may have to negotiate with lawmakers.
One demand central to critics of the section would be instituting a requirement that law enforcement procure a warrant to collect and search data.
Section 702 was enacted during the presidency of George W. Bush as a crime-fighting measure and proponents of it, like the director of central intelligence, Bill Burns, have testified that it is “crucial” in finding and monitoring networks of organizations like drug cartels.
The provision was meant “to address a collection gap that resulted from the evolution of technology in the years after FISA was passed in 1978,” the office of the Director of National Intelligence explains on its website. As a result, “many terrorists and other foreign adversaries were using email accounts” serviced by American companies.
Before Section 702 was enacted, investigators were required “to seek individual court orders, based on a finding of probable cause, to obtain the communications of non-U.S. persons located abroad,” the intelligence office says.
Although intelligence officials maintain that they don’t use the permissions granted by FISA to target Americans, violations of FISA rules are well documented and numerous since the passage of Section 702.
Critics like the American Civil Liberties Union contend that under Section 702 “the U.S. government engages in mass, warrantless surveillance of Americans’ and foreigners’ phone calls, text messages, emails, and other electronic communications.”
The civil liberties group says data collected using Section 702 “without a warrant can be used to prosecute and imprison people, even for crimes that have nothing to do with national security.”
A FISA Court ruling in 2022, Lawfare has reported, disclosed that the FBI had been improperly using Section 702 to spy on Americans associated with the George Floyd protests and the January 6 attack on the capitol, conducting 278,000 improper searches in 2020 and early 2021.
Although the specific rules around FISA appear to some as arcane and byzantine, privacy advocates stress that revisions to FISA and Section 702 could be the biggest opportunity to protect Americans’ privacy in decades.