House Panel Explores Warrant Requirement for FISA Searches

Requiring a warrant for backdoor searches is one way to curb surveillance abuse under the Foreign Intelligence Surveillance Act, House Judiciary Committee members were told Friday during a hearing on FISA reauthorization (see 2306130053).

FISA expires in December. Ranking member Jerry Nadler, D-N.Y., and House Federal Government Surveillance Subcommittee Chairman Andy Biggs, R-Ky., suggested Friday FISA should be repealed unless authorities under Section 702 are significantly updated. Liz Goitein, Brennan Center for Justice’s Liberty & National Security Program senior director, told them a warrant requirement for back door searches is necessary but “far from sufficient” if policymakers want to end abuse.

The need for revising FISA has been one area of bipartisan agreement on the committee, as highlighted by Chairman Jim Jordan, R-Ohio, and Rep. Zoe Lofgren, D-Calif., at this week’s FBI oversight hearing (see 2307120065). Rep. Hank Johnson, D-Ga., the top Democrat on the House Intellectual Property Subcommittee, defended the FBI’s record at Friday’s hearing. Despite the criticism of the FBI for its Section 702 abuse, U.S. citizens will never fully understand the degree to which FISA kept Americans safe, said Johnson. There’s a reasonable expectation of privacy under the Fourth Amendment, but there should be no reasonable expectation of privacy for data acquired on the open market, he said: It’s accessible by China, Russia or North Korea on a daily basis, so why shouldn’t the U.S. government be able to acquire the same data, he asked. Johnson said he’s “heartened” that DOJ is “working hard” to improve compliance with Section 702, but he’s open to discussions about improving FISA authorities.

Nadler noted he’s never voted in favor of reauthorizing Section 702. He said he agrees with Biggs on “very little,” but they agree Congress needs to put an end to warrantless backdoor searches. Congress should let FISA expire, said Rep. Matt Gaetz, R-Fla. He noted upward of 10,000 officials can access American data. The actual number is unknown because the government wants to keep this “very awkward” number undisclosed, said Goitein.

Congress has shown it can agree on surveillance reform, said House Federal Government Surveillance Subcommittee ranking member Sheila Jackson Lee, D-Texas. She cited the 2015 passage of the USA Freedom Act, which revised the Patriot Act, a post-9/11 bill that strengthened law enforcement authorities for investigating suspected terrorists.

Nadler noted the number of DOJ searches done among U.S. person identifiers dropped from 3.4 million in 2021 to less than 120,000 in 2022. That decrease was the result of changes in oversight and database requirements, said Goitein. That DOJ is proud of that “jaw-dropping” 120,000 figure shows how “little regard” the department has for civil liberties, she said. A warrant requirement would go a long way in modernizing FISA, and DOJ hasn’t made an argument as to how such a change would harm national security, she said.

Biggs said he “sees no reason” why any member of Congress should “trust” the FBI with this tool. He urged “serious reforms” or a full repeal of FISA, saying the act has a “dubious” constitutional foundation. He noted the FBI used the authority to spy on congressional donors, Jan. 6 protesters, Black Lives Matter protesters and even members of Congress.