Sens. Dick Durbin and Mike Lee crafted the Senate’s first real attempt at compromise on the future of the Foreign Intelligence Surveillance Act’s Section 702 after months of gridlock.
But within weeks of studying the legislation, the intelligence community mobilized against it, saying it would undermine national security and public safety, according to people close to the effort and documents reviewed by NOTUS — just as intelligence officials have with every other major reform proposal introduced by Congress.
Talking points, distributed to former national security officials and other outside allies last week, outlined the intelligence community’s efforts to sink yet another attempt to forge a middle ground between privacy advocates and national security hawks — saying that the Durbin-Lee proposal would curtail the government’s ability to stop terrorist threats.
The major sticking point — whether intelligence agencies should get a warrant to query the databases for information about Americans — has scrambled the usual partisan coalitions in the legislature over the last year and left legislative leaders in a quandary about how to proceed before the law expires next week. Reauthorizing Section 702 is a top priority for the Biden administration and the intelligence community, who want the program reauthorized without significant changes. The intelligence community has repeatedly called any warrant requirement unworkable, including the Durbin-Lee compromise.
The House is scheduled to have a classified briefing with senior intelligence officers on Wednesday, with a vote expected in the lower chamber Thursday. Speaker Mike Johnson is moving forward with a bill that will reauthorize the program — but civil libertarians are still hoping to attach a variety of amendments that would strengthen privacy protections for Americans.
The Senate has largely let the House take the lead on the debate. But the most recent compromise proposal, called the SAFE Act and publicly unveiled on March 14 by Durbin and Lee, attempted to craft a middle ground between a full warrant requirement and a simple reauthorization. House members have been trying to find a path forward on the legislation — with the major dividing lines emerging between members of the House Intelligence Committee, who want a simple reauthorization, and members of the House Judiciary Committee, who want a warrant requirement.
The SAFE Act would let the intelligence community search its intelligence holdings to see if a foreign target was communicating with Americans without getting a court order. However, if the search returned any communications to Americans, agencies would need to get court authorization to look at the content of the communications.
Section 702 allows American spy agencies to demand information from American tech companies and telecoms about foreigners who may be spies, terrorists or have other information of intelligence value — letting them collect emails, text messages and other electronic communication to better inform American policymakers about threats. There is a broad bipartisan consensus for allowing that kind of intelligence collection directed at foreigners.
But that’s where the consensus ends. Americans can’t be targeted under the law, and generally speaking, the U.S. government needs probable cause of a crime or that an American is an agent of a foreign power to get a wiretap to listen to phone calls or intercept emails. However, because Americans sometimes communicate with foreigners under surveillance, their communications are at times intercepted under Section 702. The intelligence community calls this “incidental” collection because it was picked up as part of a lawful mission, but civil libertarians see it as a loophole to warrantlessly collect data about U.S. citizens.
Intelligence agencies “call them queries. They’re a search of a large database,” said Bob Goodlatte, a former Republican congressman and Judiciary Committee chairman. “They should have to have a warrant,” said Goodlatte, who is now lobbying on behalf of a bipartisan coalition demanding reforms to Section 702.
According to interviews with former intelligence community officials, the government will rarely be able to meet the standard required to get a search warrant when querying the database about Americans.
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The queries that the intelligence community conducts “are an extremely important tool analytically that are used to uncover connections with others in the United States,” said George Croner, a senior fellow in the National Security Program at the Foreign Policy Research Institute and a former National Security Agency general counsel. “If you’re going to pass a court order requirement, you might as well just eliminate U.S. person queries,” Croner said.
To require the agencies to jump through legal hoops to do searches on the nexus between foreigners under surveillance and people in the United States would destroy the usefulness of the tool, he and other officials argued.
The database is most often used at the preliminary stages of an investigation to look at whether known terrorists or foreign spies are communicating with Americans. At that stage, investigators will have scant information about who the American is and what their relationship is with overseas terrorists or foreign government officials. Without additional information on the American, investigators are unlikely to get a court order approved. Communicating with a terrorist or a foreign official overseas is not unlawful on its own.
Both worldviews are well represented in Congress, and the sides in the debate do not easily map along partisan or ideological lines. Hard-line conservatives like Reps. Jim Jordan and Andy Biggs have forged alliances with progressives like Rep. Pramila Jayapal. Liberal Democrats find themselves in alliances with intelligence agencies and Republicans with more traditional national security views.
“I was a criminal defense attorney for 17 years. I fought for the Fourth Amendment,” said Mike Quigley, an Illinois Democrat who served on the House Intelligence Committee for several years.
“Those who are proposing this are wrong. They don’t understand how the process works. And they and many people in our country have extraordinary amnesia about the threats this country faced,” Quigley said about the idea of instituting a warrant requirement.
Numerous bipartisan proposals in both the House and the Senate sought to impose more restrictions, and each and every time, the intelligence community has lobbied fiercely against those proposals. Just as fiercely, civil libertarians in both parties have vowed that they will not renew the law without a new warrant requirement for Americans.
While Section 702 is set to expire on April 19, U.S. officials may be able to continue to run the program for months after the deadline if Congress can’t find a middle ground. The program is certified annually by a special court — and intelligence officials sought another annual certification before the expiration date.
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Byron Tau is a reporter at NOTUS.