House Judiciary Passes FISA-Reform Bill With 35-2 Vote

The House Judiciary Committee on Wednesday voted 35-2 to advance legislation requiring members of the intelligence community to obtain a warrant when targeting Americans using foreign intelligence surveillance authority (see 2312050054).

Chairman Jim Jordan, R-Ohio, said he expects the House to vote on the Protect Liberty and End Warrantless Surveillance Act (HR-6570) next week. Members also could vote on competing legislation from the House Intelligence Committee that's scheduled for mark up Thursday. The House Intelligence and the Senate Intelligence Committee have introduced legislation that doesn’t include a warrant requirement.

Reps. Eric Swalwell, D-Calif., and Hank Johnson, D-Ga., voted against HR-6570 Wednesday. It’s “not an accident” there hasn’t been a 9/11-scale terrorist attack on U.S. soil since 2001, said Swalwell. The changes in HR-6570 would leave the intelligence community “blind” to many threats from foreign terrorists, and sponsors ignore that U.S. citizens can work with terrorists, Swalwell added. “We can do this in a better way that protects civil liberties without leaving us so vulnerable to a catastrophic terrorist attack,” he said. Swalwell said he knows better than anyone on the committee about firsthand surveillance abuse. His remark referenced unsubstantiated claims that he interacted with an alleged Chinese spy who worked for his campaign. Johnson previously defended the FBI’s surveillance record (see 2307140042).

The “single most important [Foreign Intelligence Surveillance Act] reform” is implementing a warrant requirement for U.S.-person queries, said ranking member Jerry Nadler, D-N.Y. The bill would impose a probable cause warrant requirement on searches using U.S.-person identifiers, with “reasonable” exceptions involving cybersecurity and “exigent circumstances,” he said. Members need to “strike the right balance,” and HR-6570 offers “perhaps the only balance that can pass the House” right now.

Jordan said he worked for months on the legislation with Nadler and civil liberty advocates Andy Biggs, R-Ky., Pramila Jayapal, D-Wash., and Zoe Lofgren, D-Calif. “It’s nice to have the committee work this way from time to time,” particularly on something with this “level of importance,” he said. Added Nadler: Bipartisan is “not a word often used to describe our committee,” but this was a “true” bipartisan process.

Biggs detailed what he said were well-documented FBI abuses under FISA Section 702: In 2021, the FBI “wrongly” queried communications of more than 3.3 million Americans, and a recent FISA court opinion showed the FBI in 2022 conducted more than 278,000 improper searches related to communications by American citizens. Intelligence officials are using “scare tactics to convince Congress that these unchecked powers” are the only option to protect national security, said Biggs. He noted the legislation includes language from the Fourth Amendment Is Not for Sale Act (see 2307190049), which would ban law enforcement and intelligence agencies from buying consumer data from brokers without a warrant.

During the markup Jayapal successfully added an amendment that would ban intelligence officials from “reverse targeting” Americans. This refers to using Section 702 to monitor foreign targets with the purpose of gathering communications from Americans. The amendment would prohibit the government from targeting a foreign person if a “significant purpose” of the surveillance is to “spy” on an American in contact with the foreign target. This would clarify language banning the practice when the sole purpose is gathering an American’s communications.

Biggs offered and then withdrew a Lofgren amendment that would have required officials to obtain a warrant when searching for information on Americans using authority under Executive Order 12333. (Lofgren tested positive for COVID-19 and didn't attend the session.) EO 12333 authorizes the NSA to collect and analyze intelligence from foreign targets. Biggs said Lofgren recognized the “germaneness” concerns about the amendment and withdrew it.

The bill passed Wednesday is the "strongest surveillance reform passed out of committee since the original FISA bill 45 years ago," said Jake Laperruque, deputy director for the Center for Democracy & Technology's Security and Surveillance Project.