The House voted 235 to 191 on Wednesday to keep Section 702 of the Foreign Intelligence Surveillance Act running for another three years, declining once more to require federal agents to get a warrant before searching Americans’ communications scooped up under the program.
Around twenty Republican privacy hawks broke with leadership and joined Democrats in opposition, but the bill cleared the chamber with hours to spare before the Thursday midnight expiration.
Section 702, first authorized in 2008, lets intelligence agencies intercept the electronic communications of foreign nationals outside the United States without a warrant.
The catch, and the part that has driven nearly two decades of reform fights, is that those intercepts routinely sweep up the texts, calls, and emails of Americans who happen to be in contact with the roughly 350,000 foreign targets surveilled each year. That data sits in a federal database, and the FBI can search it for Americans’ information without going to a judge first.
The reforms attached to the renewal do not change that. They tinker around the edges. Federal agents will need an attorney’s sign-off before targeted reviews of Americans’ data, each query will require written justification submitted to the Office of the Director of National Intelligence, and misuse can now carry up to five years in prison.
The FBI will also have to file monthly reports to oversight officials defending searches involving Americans.
None of this requires a judge or forces the government to articulate probable cause before reading what an American wrote or said.
A bipartisan bloc has pushed for almost twenty years to require specific court approval before agents can pull up an American’s communications from the 702 trove, arguing that anything less is a Fourth Amendment workaround.
The bill that passed Wednesday explicitly references the Fourth Amendment in its text. It just does not require a warrant to honor it.
We obtained a copy of the bill for you here.
Hellbound and Down 