WASHINGTON (CN) — The House Judiciary Committee on Wednesday overwhelmingly approved a bill that, if made law, would slap restrictions on a law that some members of Congress have argued gives the intelligence community license to spy on American citizens.
With the end of the year fast approaching, lawmakers are weighing whether to extend a controversial program, laid out in Section 702 of the Foreign Intelligence Surveillance Act, which allows federal law enforcement to conduct surveillance on foreign nationals who use U.S. communications systems.
The provision, established by amendment in 2008 and set to expire Dec. 31, was originally established as a counterterrorism tool giving the intelligence community license to monitor and deter threats from abroad. Critics of the provision, however, have argued that it has departed from its original intent.
Opponents of Section 702 have contended that law enforcement agencies do not need a search warrant to conduct surveillance activities under the law, and argue that the program is prone to abuse — pointing to reports that American citizens have been queried under Section 702 despite the law prohibiting such activity.
Law enforcement agencies, critics say, have used a “backdoor” in Section 702 to do an end-run around its restrictions on surveilling Americans, using communications with individuals outside the U.S. to gain access to domestic data.
With these concerns top of mind, the House Judiciary Committee Wednesday voted to advance the Protect Liberty and End Warrantless Surveillance Act, sponsored by Arizona Representative Andy Biggs.
If made law, Biggs’s measure would amend the Foreign Intelligence Surveillance Act, or FISA, to block law enforcement agencies from using Section 702 authority to surveil American citizens or people located within the U.S. without first receiving a warrant. The bill includes exemptions for specific emergency situations or if the subject of such a search has consented.
Biggs’s legislation would also prevent law enforcement from using information gathered during lawful surveillance in court proceedings or any other matters unrelated to the subject of the agency investigation for which it conducted its search.
Wednesday’s 35-2 vote to approve the proposed measure was a rare show of bipartisanship for the often-divided panel. Lawmakers on both sides of the aisle expressed concern about the current state of Section 702 and urged their colleagues to take action to limit its authority.
“A law designed to provide tools to collect foreign intelligence and prevent terrorist attacks has been warped into a domestic spy tool used to target Americans,” said Biggs, a Republican. “We cannot allow that to continue.”
Pennsylvania Democrat Madeleine Dean told her colleagues that she was “encouraged that both members on both sides of the hearing room take this responsibility seriously,” and said that Section 702 authority had been subject to “appalling overuse.”
“The warrant requirement and other key provisions at the heart of this bipartisan bill will leave Americans’ civil rights better defended,” she argued, “as we allow these agencies to do the important work of keeping us safe.”
New York Democrat Jerry Nadler, the Judiciary Committee’s ranking member, concurred.
“For too long, FISA has enabled the surveillance of Americans without adequate safeguards to protect their civil liberties,” he said.
Nadler acknowledged taht U.S. intelligence community is essential to national security, but argued that it was unreasonable to expect that these agencies “should also be required to make judgments about how to protect the constitutional rights of those surveilled.”
“They need Congress to enact guardrails,” he said.
The committee ranking member applauded the bipartisan effort to put limits on Section 702 authority.
Bipartisanship is “not a word often used to describe our committee,” Nadler said, “but the process that led to this bill was one of true bipartisanship.”
The New York Democrat expressed confidence that lawmakers had come up with a winning formula for reforming government surveillance activities.
“I believe we have struck the right balance here,” Nadler said, “perhaps the only balance that can pass the House of Representatives at this time.”
Congressional action to limit Section 702 powers comes just a day after the Senate grilled FBI Director Christopher Wray on his agency’s compliance with the law. Wray, who has defended the provision and told lawmakers Tuesday that it was “indispensable” to the FBI’s surveillance activities, said that his agency has taken steps to rein in misuse of Section 702 authority and that he has been “encouraged” by what he framed as improved compliance with the policy.
Meanwhile, some lawmakers have demanded that Congress refuse to reauthorize Section 702 altogether.
More than 50 Democrats and Republicans penned a letter to House leadership in November, urging them to back away from the provision and arguing that even a temporary extension of its authority would be unnecessary. Such action “would be an inexcusable violation of the public’s trust to quietly greenlight an authority that has been flagrantly abused,” the lawmakers wrote.
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