New Surveillance Reauthorization Bill Would Codify Warrantless Searches of Americans’ Communications

January 8, 2018

U.S. House leadership has unveiled a new bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) — a law the government interprets as allowing warrantless searches of Americans’ communications by intelligence agencies — which will expire on January 19 absent congressional action. The bill will go through the House rules committee tomorrow and could get a floor vote as early as this Wednesday or Thursday.
The legislation would authorize warrantless access to Americans’ communications except in “predicated criminal investigations” not related to national security or foreign intelligence. The term “predicated” describes investigations that have proceeded past a certain point of fact-gathering; the bill permits warrantless searches of Americans’ communications during “assessments” — i.e., investigations that are at an earlier stage. Because the government could still search the 702 data without a warrant at the early stages of its investigations, the FBI acknowledged to lawmakers that the bill’s warrant requirement would rarely apply in practice.
The bill is similar to one House Majority Leader Paul Ryan had scheduled for a vote the week before holiday recess, but had to pull quickly when it became apparent that it lacked sufficient support.
“This bill is yet another codification of warrantless searches masquerading as reform,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program. “Requiring a warrant to search Americans’ communications only in a small subset of later-stage criminal investigations is a bad joke. That leaves the FBI and other agencies free to conduct warrantless searches in the early stages of an investigation — when there is even less evidence to justify them. This would make matters worse, not better. It would give FBI agents a big incentive to conduct these unconstitutional searches the moment they receive a tip, however unsupported or unreliable.”
The bill would also expressly allow the NSA to warrantlessly collect, not just communications to or from foreign targets, but communications that merely mention them — including wholly domestic communications among Americans. The NSA ended this controversial practice, known as “about collection,” in April 2017, but could restart it under the bill.
“The House should soundly reject this bill, unless it is amended to provide real protections for Americans’ privacy,” said Goitein. “These protections must include a warrant requirement any time the government seeks to read Americans’ e-mails or listen to their phone calls, as well as an end to so-called ‘about’ collection that sweeps in tens of thousands of wholly domestic communications.”
For more on reforming Section 702, please see the Brennan Center’s analysis here. For other Section 702 resources, please see our foreign intelligence surveillance resource page.
For more information or to schedule an interview, contact Naren Daniel at (646) 292-8381 or