A bipartisan Senate duo is pushing to require a warrant before accessing information about Americans obtained by the government through foreign espionage activities, reigniting a battle that collapsed with a tie vote in the House.
The amendment by Senate Judiciary Chairman Dick Durbin (D-Ill.) and Senator Kevin Cramer (RN.D.) largely mirrors a similar amendment that seeks to add a warrant requirement to Section 702 of the Security Surveillance Act. Foreign Intelligence (FISA).
Section 702 only allows the government to spy on foreigners located abroad. But Americans who communicate with targets see these interactions swept away in the course of operations.
A contentious debate over the warrant’s provision led to a 212-212 vote in the House. While proponents see requiring a warrant as a way to protect Americans’ Fourth Amendment rights, opponents — including the White House and the intelligence community — say it would destroy the spying tool and prevent authorities from acting with intelligence. based on real-time information.
“I attended several confidential briefings on Section 702 issues and listened carefully to the administration’s concerns about the need to obtain judicial approval to review the content of Americans’ communications,” Durbin said in a statement.
“Our bipartisan amendment addresses these concerns by providing exceptions to the warrant requirement for emergencies or cybersecurity attacks, or when an American consents to the search. This will ensure there are no delays that put national security at risk. But if the government wants to spy on Americans’ private communications, they should be required to get approval from a judge – just as our founders intended.”
The intelligence community suggested the provision would be unworkable, and the Biden administration quickly spoke out against the change, calling it “a reckless policy choice, contrary to the key lessons of 9/11 and not based on any constitutional requirement or statute.” .
“The amendment completely prohibits the government from gaining access to lawfully collected information using terms associated with US citizens. Exceptions to this prohibition are narrow and impractical. They are insufficient to protect our national security,” the Biden administration wrote in a leaflet that was distributed to senators.
“The emergency exception for imminent threats of death and serious bodily harm is so limited that the criteria would almost never be met. Without reviewing the communications returned by a query, an analyst would not know whether a threat meets the exception.”
Rep. Jim Himes (Conn.), the top Democrat on the House Intelligence Committee, noted that in many cases, agencies like the FBI are using the 702 database to uncover information about potential threats — information that would likely be insufficient to obtain a traditional guarantee.
“Let’s say a member of Congress was discussed by Chinese intelligence officials. There is no real concern that the member of Congress is involved in a crime. But obviously our intelligence community would like to know why Chinese intelligence officials are talking about a member of Congress,” Himes said as the House was prepared to consider the warrant requirement.
“If we discover that an ISIS leader is talking to an individual in Los Angeles, who is, by definition, a person from the US, we have no idea why that conversation is taking place. He can be a family member or a friend. So you can’t go to a judge and say, ‘We have no idea why this communication is occurring, but we want you to issue us a probable cause warrant.’ That’s why the administration says approval of a warrant would end this program.”
A US intelligence official gave another example, citing a case in which the CIA managed to alert partners to the arrival of a shipment of fentanyl precursors – information they had gathered just 48 hours before arriving at the US port and information they would not have otherwise known. obtained without reviewing the information. from American sources.
Still, some argue that the provision is necessary to curb abuse of the 702 database, especially after the Foreign Intelligence Surveillance Court found that the FBI misused the tool some 278,000 times over several years.
“Section 702 of the Foreign Intelligence Surveillance Act has been abused and any reauthorization requires us to further protect Americans’ Fourth Amendment rights. Preventing the intrusive and often corrupt federal government from warrantless access to private communications is crucial to preserving the civil liberties and Fourth Amendment rights of all Americans,” said Cramer.
FBI queries of U.S. citizens have declined dramatically in recent years after the agency instituted reforms and made a technical fix to the search platform that previously allowed agents to search the 702 database.
Intelligence leaders, however, said the FISA 702 reauthorization bill introduces substantial reforms that will alter the program.
The bill includes a number of reforms, including one that would drastically limit the number of officials who can approve any 702 database queries involving people in the US, and another that would require a post-facto audit for the entire US. people search.
“It is best understood as the most comprehensive set of reforms in the history of the 702 program. This is a true reform bill that will change the way we do business, especially the FBI, in a way that will better protect civil liberties. and privacy,” a senior Justice Department official previously told The Hill.
Updated: 5:36 p.m.
This story originally appeared on thehill.com read the full story
