House Approves FISA Extension as Warrant Provision Narrowly Fails

The House on Friday voted to renew the intelligence community’s foreign surveillance authority for two years (see 2404100069). The vote was 273-147, with 147 Democrats and 126 Republicans in favor. An amendment that would have added a warrant requirement to Section 702 of the Foreign Intelligence Surveillance Act narrowly failed 212-212, with 128 Republicans and 84 Democrats voting in favor.

Federal law enforcement agencies use Section 702 to compel phone companies and internet service providers to share communications data, including phone calls, texts and emails, with officials who are investigating foreign targets. Privacy advocates have long sought a warrant requirement for agencies seeking communications of U.S. citizens swept into the investigations (see 2403140073, 2005140061 and 1801110020).

President Joe Biden opposed the warrant requirement amendment, which was proposed by Reps. Andy Biggs, R-Ky.; Pramila Jayapal, D-Wash.; Jim Jordan, R-Ohio; Jerry Nadler, D-N.Y.; Warren Davidson, R-Ohio; and Zoe Lofgren, D-Calif. It would have blocked intelligence officials from reviewing critical, lawfully collected information, the White House said in a statement: “Our intelligence, defense, and public safety communities are united: the extensive harms of this proposal simply cannot be mitigated.”

Speaker Mike Johnson, R-La., agreed to hold a floor vote next week on Davidson’s bipartisan, bicameral Fourth Amendment Is Not For Sale Act (see 2307280043). Introduced in the Senate by Ron Wyden, D-Ore., and Rand Paul, R-Ky., the bill would ban law enforcement from buying consumer data from brokers without a warrant.

Intelligence agencies have refused to estimate the impact of the warrant requirement, Jordan said on the floor Friday. He noted the FBI conducted 3 million U.S.-person queries using the Section 702 database between 2020 and 2022. The amendment would have allowed agencies to forgo a warrant on those queries in emergency situations. Jordan said officials declined to tell him how many of those searches would be allowed under the proposal. “They won’t tell us, which should be concerning in and of itself,” he said. “But if it’s a big number, we should be particularly frightened. And if it’s a small number, then what’s the big deal?”

House Intelligence Committee Chairman Mike Turner, R-Ohio, and ranking member Jim Himes, D-Conn., fiercely opposed the warrant requirement. Himes referred to the White House statement describing “damage” that would be done if the amendment passed. Turner claimed the amendment would grant constitutional rights to foreign terrorists, allowing them to recruit individuals on U.S. soil without law enforcement monitoring.

Turner’s claim is “nonsense,” said Nadler. The amendment wouldn’t change any requirements for “valid targets” under Section 702, said Nadler: It would apply to U.S.-person information, “nothing more.”

Privacy advocates said provisions included by the House Intelligence Committee will expand law enforcement's surveillance authorities. Wyden said in a statement that the House bill lets the government "force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government’s behalf. That means anyone with access to a server, a wire, a cable box, a wifi router, or a phone. It would be secret: the Americans receiving the government directives would be bound to silence, and there would be no court oversight."

The House initially considered a five-year extension of Section 702, which is set to expire April 19. The two-year window could mean Republican presidential nominee Donald Trump would get an “at bat” on FISA revisions if he wins the election, said Rep. Matt Gaetz, R-Fla.

Section 702 is “indispensable in keeping Americans safe from a whole barrage of fast-moving foreign threats” in China, Russia and Iran, FBI Director Christopher Wray told the House Appropriations Subcommittee during a hearing Thursday. “None of our adversaries are tying their own hands,” and “gutting” Section 702 with a warrant requirement would put “American lives at risk.”

The amendment from Jordan and Nadler “seriously undermines our ability” to protect national security, said former House Speaker Nancy Pelosi, D-Calif., on the floor Friday. “If members want to know, I'll tell you how we could have been saved from 9/11 if we didn't have to have the additional warrants.”

Demand Progress criticized Pelosi and Reps. Ted Lieu, D-Calif., and Joe Neguse, D-Colo., for voting against the amendment, given their “long histories of voting for this specific privacy protection.” House Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., and ranking member Frank Pallone, D-N.J., voted in favor of the warrant requirement, as did House Innovation Subcommittee Chair Gus Bilirakis, R-Fla., and ranking member Jan Schakowsky, D-Ill.