McClintock, Lofgren join forces in caucus as FISA reauthorization looms

Two California lawmakers have joined forces to lobby for changes to an intelligence-gathering tool that allows for warrantless spying on foreign nationals, a process that can sweep up information on Americans in the process.

The Fourth Amendment Caucus — formed by Reps. Zoe Lofgren (D) and Tom McClintock (R) — is arguing for reform as Congress weighs reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA).

With a nod to the constitutional protection against unreasonable searches and seizures by the government, a “Dear Colleague” letter says the caucus would fight “to safeguard against warrantless searches and seizures, close privacy-violating surveillance loopholes, and protect and restore Fourth Amendment rights.”

Section 702 allows for the warrantless surveillance of foreigners outside the United States, even as they communicate with U.S. citizens on domestic soil. It’s a feature that many fear allows intelligence agencies to keep tabs on U.S. citizens without securing a warrant.

In 2021, according to the most recent data available, authorities surveilled more than 232,000 foreign nationals under Section 702, but some 3.4 million Americans were queried in what the caucus referred to as “backdoor searches.”

Rep. Darin LaHood (R- Ill.) has said he believes he was swept up in one such FISA search. 

“It is crucial to emphasize that the reforms spearheaded by the Caucus will protect American civil liberties while preserving national security. United in our efforts, we can profoundly impact the protection and preservation of privacy rights for all Americans,” Lofgren and McClintock wrote in their letter.

The caucus is the latest sign of the uphill battle to reauthorize 702 — a cause that can make for strange bedfellows.

While some of the GOP’s most right-wing members have been vocal in expressing concern over reauthorization, so have some of Congress’s more left-leaning members, with Congressional Progressive Caucus Chairwoman Pramila Jayapal (D-Wash.) saying the reauthorization process “must include meaningful reforms to protect Fourth Amendment rights.”

The Justice Department and FBI have been making the case for Section 702 reauthorization, warning of what they would lose if the power expires at the end of the year.

“What keeps me up at night is thinking about what will happen if we fail to renew Section 702 of FISA,” said Matthew Olsen, the assistant attorney general for national security, at a discussion at the Brookings Institution in March. 

“Without 702, we will lose indispensable intelligence for our decision-makers and warfighters, as well as those of our allies. And we have no fallback authority that could come close to making up for that loss.”