Key Vote Alert: Reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA)

Apr 12, 2024 by AFP

Dear Representative,

On behalf of millions of Americans for Prosperity’s activists in all 50 states, I urge you to carefully consider the anticipated votes to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) and to oppose H.R. 7888 the Reforming Intelligence and Securing America Act (RISAA) absent significant changes.

Passed in 2008 by Congress, Section 702 of the Foreign Intelligence Surveillance Act granted the government greater powers to conduct surveillance of suspected foreign terrorists. However, Section 702 has become a go to resource for the government to access Americans’ communications without the proper protections afforded by a warrant.  The FBI conducted up to 200,000 warrantless searches of the communications of American citizens in 2022 alone using the Section 702 database.  These abuses are ongoing and will continue unless Congress enacts significant new safeguards.

As the House of Representatives considers reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), Americans for Prosperity urges you to support amendments which will end Section 702 abuses by adding critically needed protections for Americans’ civil liberties and oppose amendments which will weaken privacy safeguards and expand warrantless surveillance. We will Key Vote “YES” on final passage of legislation that includes the below amendments to safeguard civil liberties while also excluding the below amendments that expand surveillance, however, we will Key Vote “NO” on final passage of the current base bill or of any version of RISAA that includes the below amendments that expand surveillance.

The base text being brought to the floor known as the Reforming Intelligence and Securing America Act is misleadingly named. We oppose this proposal because it is not designed to reform the law, but instead at best preserves the status quo and at worst undermines existing privacy protections within FISA. Specifically, the bill undermines existing amicus procedures by limiting the pool of eligible amici to those with intelligence community backgrounds and limiting the range of arguments amici can make to the FISA Court. If Congress passed this bill without the below proposed privacy-minded amendments, it would be signing off on continued abuse of US person queries to spy on Americans, which has included spying on political protestors, donors to a political campaign, and even a sitting Member of Congress.

We support the following expected amendments that will add significant privacy and civil liberties protections and make the underlying RISSA legislation worth supporting.

Support Amendments that Safeguard Civil Liberties:

SUPPORT Amendment #6 offered by Representatives Biggs closing the Section 702 backdoor search loophole. The CIA, FBI, and NSA routinely use this loophole to search billions of international communications – obtained without a warrant – for the express purpose of finding and reviewing Americans’ phone calls, text messages, and emails. This amendment will require the government to obtain a warrant or FISA Title I order before searching the Section 702 data for Americans’ communications.
SUPPORT Amendment #5 offered by Representative Cline prohibiting the resumptions “abouts” collection. A practice ended by the intelligence community several years ago, this amendment codifies a prohibition on the collection of communications that are neither to nor from a legitimate Section 702 target, but merely mention information that is associated with the target. This practice, which finds no support in the text of law, inevitably results in the collection of large quantities of purely domestic communications.

However, there will be additional amendments offered that would expand warrantless surveillance even further and threaten the privacy rights of even more Americans. We oppose the following proposed amendments:

Oppose Amendments that Expand Surveillance:

OPPOSE Amendment #1 offered by Representative Crenshaw expanding the definition of “foreign intelligence”. The existing definition of “foreign intelligence” under FISA is already extraordinarily broad, encompassing any information that merely “relates to” the defense, security, or foreign relations of the United States. This amendment would further enlarge the definition to include international production, distribution, or financing of illicit synthetic drugs OR “any controlled substance designated by the Controlled Substances Act” OR precursors of any of the above. Information about the international trafficking of dangerous drugs like fentanyl already qualifies under the existing definition of “foreign intelligence,” which is why the government currently uses Section 702 to collect intelligence about fentanyl trafficking. Allowing the NSA to collect information about the international production, financing, and distribution of any controlled substance — including innumerable prescription medications with minimal abuse potential — would create a massive expansion of surveillance, unmooring “foreign intelligence” collection from the limiting principle of protecting U.S. safety and security.
OPPOSE Amendment #3 offered by Representative Waltz unnecessarily expanding immigrant vetting. This amendment would permit warrantless searches of Section 702 data for all people seeking permission to travel to the United States, whether on student or work visas or as tourists or business travelers, even when there is no reason to believe they pose a risk to national security or possess foreign intelligence information. This invasive measure is wholly unnecessary given the multiple vetting mechanisms that already exist to ensure that visitors to this country do not threaten our national security. This includes, but is not limited to, the use of Section 702 on foreigners located abroad who are a target of surveillance prior to travel to the United States.
OPPOSE Amendment #4 offered by Representative Turner expanding the universe of companies that must assist the government in conducting surveillance. Currently, Section 702 requires electronic communications service providers, such as Verizon or Google, to assist the government in conducting Section 702 surveillance — generally by turning over targets’ communications. Under this amendment, the government could conscript into service any person or company that must assist in conducting such surveillance, as outlined here.

Section 702 is a powerful spying tool that is ripe for reform in ensuring the government can identify foreign threats while also safeguarding the Fourth Amendment rights of all Americans. Congress must not pass a bill that reauthorizes Section 702 without including commonsense reforms that will end the abuses within the program. In order to protect your constituents’ right to privacy, we will Key Vote “NO” on final passage of any legislation that fails to include the amendments offered by Representatives Biggs and Cline or that does include the amendments offered by Representatives Turner, Crenshaw and Waltz.

This vote will be recorded in our legislative scorecard. To see what other votes have been included, please visit AFP’s scorecard online at: AFPscorecard.org.

Sincerely,

Brent Gardner

Chief Government Affairs Officer

Americans for Prosperity