GOP lawmakers press warrant requirement for FISA searches

With a controversial federal surveillance statute up for renewal next year, Republican lawmakers on the U.S. House Judiciary Committee are reviving a push for an amendment to protect American citizens from what they say is unconstitutional surveillance, and a warrant requirement is front and center of the proposed reform.

Simply put, GOP lawmakers, including House Judiciary chairman Jim Jordan (R-Texas) and Northwoods U.S. Rep. Tom Tiffany (R-Wisconsin), say Section 702 of the Foreign Intelligence Surveillance Act (FISA) should not allow federal agents to warrantlessly search a database using U.S. individuals’ personal information. They can do so now, so long as those communications are from people in the United States and they are texting, emailing, or calling overseas surveillance targets.

The push came after 2024’s Reforming Intelligence and Securing America Act (RISAA) failed to include the warrant requirement. That bill also expanded corporate compliance requirements for government data requests.

During that bill’s debate, the judiciary committee passed an amendment including the warrant requirement, but it failed on the House floor on a 212-212 tie vote. Tiffany says Congress needs to act.

“Protecting the constitutional rights of Americans should never be optional,” Tiffany told The Times this week. “I support closing the loophole that allows the government to access Americans’ data without a warrant under the guise of foreign surveillance. While rare exceptions may exist in extreme cases, the warrantless searches of Americans must end.”

Writing in the Washington Post after a hearing on the issue last month, Jordan wrote that the United States could deal with foreign threats without violating Americans’ rights.

“In the United States, if the government wants to search your private records, it has to go before a court and get a warrant supported by probable cause,” Jordan wrote. “That’s a key part of the Bill of Rights and an important protection against government abuse.”

One year from now, Jordan observed, Republicans and Democrats in Congress will have a chance to reaffirm their commitment to the constitution and better protect Americans from warrantless government surveillance. 

“This will be one of the most important debates we will have this Congress, and it is vital that we begin working now to protect Americans’ constitutional rights,” he wrote. “We have one more chance to stand up for our basic constitutional rights. Under the Fourth Amendment to the constitution, the federal government generally isn’t allowed to obtain your communications without a warrant. But there are some caveats — and Section 702 is a big one.”

Specifically, Jordan wrote, Section 702 allows the government to “query” private data on Americans that is incidentally collected through the warrantless surveillance of foreign citizens.

“Make no mistake, ‘query’ is a fancy word for ‘search,’” he wrote. “In recent years, the government has searched millions of Americans’ data within the 702 database without ever obtaining a warrant. That’s not how it’s supposed to work in America.”

The government says it has query procedures to protect against unlawful searches, Jordan added, but he noted that it reportedly failed to follow its own procedures at least 278,000 times.

“Congress has a responsibility to fix this,” he wrote. “We can balance the need to protect Americans’ fundamental constitutional rights with the need to give our intelligence and law-enforcement agencies the tools to fight those who want to do us harm.”

Jordan said the RISAA did include some much-needed reforms, such as new audit requirements for queries of Americans, limits on the number of FBI employees who can conduct the queries, heightened penalties for misconduct and increased transparency measures. 

Still, the committee chairman wrote, those steps were not enough: “Until we pass a warrant requirement, the government’s powerful surveillance authorities will always be subject to abuse.”

The April hearing

At this spring’s hearing, titled “A Continued Pattern of Government Surveillance of U.S. Citizens,” those testifying repeatedly underscored Jordan’s message.

Gene Schaerr, the general counsel for the Project for Privacy & Surveillance Accountability and a managing partner of Schaerr-Jaffe LLP, said both political parties under previous administrations had expanded myriad forms of privacy-destroying technologies — elements of what Schaerr called “an emerging American surveillance state being knitted together before our eyes.”

“Like the proverbial frog unaware that it is slowly being boiled alive, Americans are being progressively trapped in a system of national surveillance,” Schaerr testified. “This is not happening because federal agencies are run by tyrants. The men and women in the intelligence community are passionate about their mission to protect the American people and our homeland. But in their zeal to execute their important mission, they are rapidly creating the elements of a pervasive American surveillance state.”

Astonishingly fast changes in technology are helping build that surveillance state before laws can catch up to keep it within the constraints of the constitution, Schaerr said.

“At airports, at malls, on the streets, we are identified and tracked by our faces,” he testified. “Cellsite simulators in geofenced areas ping our phones to follow our movements. Our automobiles keep a record of every place we drive. Our digital devices at international terminals are subject to having all their contents downloaded and inspected without a warrant.”

What’s more, Schaerr continued, thanks to purchases of Americans’ digital information from data brokers, federal agencies ranging from the FBI to the IRS, Department of Homeland Security, and the Department of Defense, routinely access, without a warrant, digital information far more personal than what can be gathered by hand or found in a diary.

“To top it off, we also face the routine collection of Americans’ communications ‘incidentally’ caught up in the global data trawl of programs authorized by Section 702, and in the past few years alone the FBI has conducted hundreds of thousands of warrantless searches of the Section 702 database specifically looking for Americans’ communications,” he testified.

This is as about as far from the Founders’ vision of the Fourth Amendment as one can imagine, Schaerr said. 

“Revulsion at government surveillance runs deep in our DNA as a nation; indeed, it was one of the main factors that led to our revolt against British rule and, later, to our Bill of Rights,” he testified. “Agents of the Crown could break into a warehouse or a home to inspect bills of lading or a secret political document, but they couldn’t access anything close to the wealth of private information contained in our digital lives today.”

Of course, Schaerr said, there is a legitimate need in a dangerous world for the government, in some rare situations, to seize Americans’ papers and other assets to search for threats to life and liberty. 

“But the Founders recognized that this authority was in itself a great danger, perhaps one as great as any external threat,” he testified. “So they placed a boundary around this power with the Fourth Amendment’s requirement for a warrant.”

While surveillance under Section 702 is in theory limited to foreigners’ communications, Schaerr said, Section 702 inevitably sweeps up vast amounts of Americans’ communications because of the interconnected nature of global communications systems and because Americans are often in communication with people outside the United States.

“As the FBI admits, it sometimes conducts warrantless ‘backdoor searches’ of those communications and other data in ordinary domestic criminal cases, and believes it has the right to do so routinely,” he testified.

What’s more, Schaerr said, according to several FISA court opinions, the FBI frequently conducts those backdoor searches in politically sensitive cases. 

“For example, in violation of its own rules, in just the last few years the FBI has searched for communications of Black Lives Matter and January 6 protesters, of 19,000 donors to a congressional campaign, of multiple U.S. government officials (including at least one member of this House), of journalists, political commentators, and a local political party, not to mention people who came to the FBI to perform repairs; victims who approached the FBI to report crimes; business, religious, and community leaders who applied to participate in the FBI’s Citizens Academy; college students participating in a Collegiate Academy; police officer candidates; and colleagues and relatives of FBI agents,” he testified.

The Reforming Intelligence and Securing America Act (RISAA) did not close loopholes allowing abuse as some believe, Schaerr said, but only codified existing FBI rules and procedures enacted in 2021 and 2022 that did not work. The FBI failed even by its own procedural standards when it conducted over 204,000 warrantless searches for Americans’ communications in the FISA database in 2022, he added. 

“A DOJ National Security audit recorded a ‘noncompliance’ rate of 1.7 to 4 percent for such queries for that year alone,” he said. “Even at the low-end estimate, that failure rate equals about 3,400 civil rights violations a year according to the FBI’s own standards, almost 10 violations per day. Not to mention that all 204,000 of those searches sidestepped the Fourth Amendment and invaded Americans’ privacy without probable cause or a warrant.”

Witness: Don’t let it expire

Also giving testimony was James Czerniawski, a senior policy analyst with Americans for Prosperity, a conservative think thank, who said the U.S. government had overstepped its constitutional limits in empowering and emboldening a national security apparatus that engaged in warrantless surveillance of Americans with little to no accountability, all under the guise of national security.

“What began as a program meant for counterterrorism has morphed into a surveillance apparatus that erodes privacy, chills free speech, and undermines faith in key institutions of government critical to protecting Americans,” Czerniawski said. “The revelations of years of numerous documented abuses coupled with a lack of accountability has resulted in an erosion of trust between the American people and the key institutions within government charged with protecting them.”

While Czerniawski echoed the abuses laid out by Schearr, he also said it would be a mistake to let Section 702 expire completely, as some critics have suggested, and not for obvious reasons.

“Back in 2020, Congress let Section 215 of the PATRIOT Act sunset as they could not come to consensus on which reforms to the program were necessary to keep it in place,” he said. “An unintended consequence of this outcome was that it did not stop the intelligence agencies from engaging in this type of surveillance. Rather, they simply carried out similar activities under other surveillance authorities like Executive Order 12333, a worse outcome as it comes without the added transparency required under a statute coupled with oversight from Congress.”

While the 2024 reforms did little to halt FISA abuses, Czerniawski said, Congress nonetheless made serious gains in understanding the necessity for true reform, and he had a few suggestions. One was the warrant requirement, except in certain situations, as in exigent circumstances and cyber-security-related queries, and when asking for metadata.

But even more was needed, Czerniawski said, such as preventing the government from being able to circumvent Americans’ constitutional rights by purchasing their personal data from private actors without a warrant.

“The purchase of such information by the government creates an additional threat, as law enforcement can then use this data tied to Americans engaging in constitutionally protected activities and subject them to additional surveillance via other technologies,” he testified. “Coupled with the backdoor search loophole, these end runs around the Fourth Amendment naturally have a chilling effect on the free speech rights of millions of Americans as they would fear being subjected to unwarranted government spying.”

Czerniawski also called for strengthening third-party oversight at the FISA court by expanding the role of neutral, third-party attorneys within the FISA court processes as additional scenarios arise that threaten Americans’ rights.

Finally, Czerniawski called for guardrails to oversee the use of technology, such as predictive policing, which uses algorithms to analyze large datasets to predict where and when crimes are likely to occur. 

“In Florida, one such program came under fire after investigative reporting revealed how the program being utilized there led to months of harassment under the guise of a ‘prolific offender check,’” he testified. “The program was so problematic that the county unsurprisingly got sued by the Institute for Justice, ultimately settling and admitting that the program had repeated constitutional violations.”

Congress must do its job

In his testimony, Phil Kiko, the former chief of staff and general counsel to the House Judiciary Committee, said he had concerns about the way the laws were being implemented. What was needed, he said, was a renewed, bipartisan oversight effort by Congress to rein in abuse and protect Americans’ expectations of privacy.

While legislative reforms such as closing the backdoor search loophole were needed, Kiko said, that was only half the battle. 

“What is also absolutely required here is vigorous, targeted oversight by the legislative branch,” Kiko said. “And just as law enforcement is increasingly able to identify and interdict crime in real time, Congress’s FISA oversight must also be in real time.”

What does that mean, exactly? Kiko asked rhetorically.

“It means that the disclosure of the information must be timely,” he said. “Congress must insist it is timely. For too long, our congressional committees have received information, in response to reporting requirements, that is months, or even years, old in addition to being poorly organized and in many instances incomplete.”

Kiko said he worked in two cabinet departments and knew firsthand what it means to receive a “congressional oversight” letter.

“Congress has the ability to receive, secure, and hold classified information,” he testified. “Every member of Congress, under the U.S. Constitution and federal law, has access to classified material. However, the number of congressional staff who hold [security] clearances is very low, especially compared to the number of executive branch employees who hold clearances. Do you know how many judiciary committee staffers hold a clearance today? I suspect it’s fewer than you think. Congress should consider amending its rules to increase the number of qualified staff with clearances for classified material and briefings.”

Kiko also called attention to a section of a proposed bill that would enable the FBI to monitor compliance of the Bureau’s 702 information systems in near-real time. 

“Could we use artificial intelligence to monitor, in near-real time, the FBI’s compliance with FISA?” he asked. “If we could, why wouldn’t Congress be entitled to that information on an ongoing or even rolling basis?”

And of course, Kiko continued, Congress must continue to include sunset provisions in FISA reauthorization.

“Without sunset provisions, we may never have learned about much of this abuse,” he testified. “Without sunset provisions, Congress will simply continue to cede its constitutional, Article I, legislative and oversight authority to unelected entities within the executive branch. FISA is up for reauthorization in another year. If it is reauthorized, I would suggest it be no longer than a two- or three-year period to ensure Congress can evaluate and update both the implementation and progress associated with its extension.”

In conclusion, Kiko testified, the short leash must be on the intelligence community, not on Congress.

“I am not someone who is hostile to strong national security laws or federal law enforcement,” he said. “Congress should not repeal section 702. It is an important tool that provides vital intelligence on a range of foreign threats and has successfully foiled terrorist attacks. Congress should not neuter FISA — which was, of course, put in place in the 1970s to constrain the government’s use of surveillance authorities against American citizens. However, Congress, as the constitutional entity closest to the people, must reassert its vital and constitutional oversight role, to protect the people.”

And just how does the Trump administration feel about all this?

That’s hard to say. The new director of the FBI, Kash Patel, opposes a warrant requirement. On the other hand, Trump himself had this to say back in spring of 2024, posting on Truth Social:

“Kill FISA. It was illegally used against me, and many others. They spied on my campaign!!!”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.