House Intel introduces warrantless surveillance reform plan amid battle to reform Section 702

The House Intelligence Committee unveiled its package to reform and reauthorize the nation’s warrantless surveillance powers, the final expected bill as Congress tangles with which legislation to back.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) — and with it, the government’s ability to spy on foreigners located outside the U.S. — is set to expire at the end of the year. But backing for what the intelligence community considers a vital tool has wavered, as the surveillance allows for “backdoor” searches of Americans communicating with the foreign targets.

The House Intelligence bill — introduced just weeks before the law is set to expire — comes as a short-term extension of Section 702 is expected to be included in the defense policy bill, extending the battle between the various committees vying to determine how the law should be reformed.

Intelligence’s bill includes a number of reforms to the law, such as those designed to provide greater oversight of the FBI, which has carried out the greatest number of searches of the 702 database for information collected on Americans.

Still, it stops short of requiring a warrant to access information on Americans swept up in the surveillance, a provision included in a competing package from the House Judiciary Committee, which marked up its own legislation Wednesday.

Instead, it would only require law enforcement to first get a warrant to search the 702 database for evidence of a crime — a small subset of queries.

“702 needs to be reformed. We’ve had an open and bipartisan, bicameral process that has identified the reforms necessary and at the same time preserved our ability to collect intelligence on foreigners located outside of the United States,” Intelligence Chair Mike Turner (R-Ohio) told reporters Wednesday.

While the bill contains numerous reforms to FISA 702, it has some provisions that expand use of the law, including allowing use of the tool designed to battle terrorism for any noncitizen “​​being processed for travel to the United States.”

But much of the legislation is directed at the FBI, including requiring an FBI supervisor or attorney to sign off on any 702 queries that involve U.S.-based individuals, something that would limit the pool of those conducting or signing off on searches to a pool of about 550 people.

The bill also requires the FBI to adopt “zero tolerance for willful misconduct” in cases where agents abuse the tool.

“We reformed the 702 process to eliminate abuses and include real criminal liabilities for those who violate the rules,” Turner said.

Some of the reforms codify changes already made by the FBI, which last year also updated its query process to force agents to opt into searching the 702 database rather than automatically doing so, leading the number of searches impacting Americans to plummet from 2.9 million last year to 119,000 this year.

The bill also includes numerous provisions that would further protect members of Congress or other high-profile officials, including requiring a lawmaker’s consent before gathering information for a “defensive briefing” about a lawmaker being targeted by a foreign entity. It also requires the FBI to notify a member of Congress, with some limitation, if they have been queried in the 702 database. 

The Intelligence bill also includes provisions that target Section 701 of FISA, the portion of the law that allows surveillance of Americans after they secure a warrant from the Foreign Intelligence Surveillance Court.

Those portions of the bill seek to strengthen requirements with Carter Page in mind, the Trump campaign adviser who was spied on by the FBI, securing a warrant with documents that contained numerous omissions. It bars law enforcement from using opposition research or media reports as a basis for a warrant, an effort to would avoid repeat incidents.

Lawmakers on the panel have sought to relay the high stakes involved as the battle to address Section 702 comes down to the wire.

“We started saying long ago that not reauthorizing 702 is not an option. And reauthorizing 702 without meaningful reforms is not an option,” said Rep. Jim Himes (D-Conn.), the top Democrat on the panel.

“In excess of 70 percent of the collection inside the president’s daily brief, which is our most exquisite intelligence product, is 702-derived.”