Rep. Matt Gaetz (R-Fla.) is leading a Republican effort in the House to abolish a controversial surveillance authority that is due for reauthorization at the end of the year.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) was enacted by Congress in 2008 as a post-9/11 measure to bulk up U.S. national security. The provision allows intelligence agencies to conduct warrantless surveillance of foreigners located outside the United States.
While the law bars the targeting of Americans, it also incidentally collects information on Americans. Warrantless searches of communications collected under Section 702 for information on Americans are also allowed in certain circumstances. This practice has drawn significant civil liberty concerns from politicians from both the left and right.
Several reports in recent years have also revealed substantial violations of the privacy rights of American citizens under the program.
Intelligence officials and some members of Congress, however, argue that the program, in spite of its abuses, is an important tool for national security, and is merely in need of reform.
Without congressional reauthorization, the measure, which was extended by Congress in 2017, will expire on Dec. 31, 2023.
But Mr. Gaetz, joined by Reps. Eli Crane (R-Ariz.), Paul Gosar (R-Ariz.), Marjorie Taylor Greene (R-Ga.), Thomas Massie (R-Ky.), and Matt Rosendale (R-Mont.) say that the problems with the system and the potential for abuse run too deep, and have called for an end to the program entirely when it sunsets at the end of this year.
A resolution (pdf) introduced by Mr. Gaetz on Tuesday would abolish the program without an extension at the end of 2023, “expressing the sense of the House of Representatives that authorities under Section 702 of the Foreign Intelligence Surveillance Act of 1978 should be allowed to expire.”
Last year, it was revealed that the FBI performed more than 3 million warrantless searches of Americans of Section 702 data in 2021. One unnamed member of Congress, which Rep. Darin LaHood (R-Ill.) believes describes him, was also allegedly spied on under the program the same year.
After these abuses with revealed, the FBI, led by Director Christopher Wray, promised that it would make changes to reduce improper queries under Section 702.
A 2022 court opinion made public earlier this year revealed that the FBI had made an additional 278,000 improper queries, including domestic queries of Jan. 6 protestors, Black Lives Matter protestors, and nearly 20,000 congressional campaign donors.
The FBI said these findings were made before the agency overhauled its system, leading to a significant drop in queries and a decline in the number of improper searches, according to a watchdog report.
For Mr. Gaetz and other lawmakers, the repeated findings of abuse suggest the program is beyond salvaging.
“The persistent abuse of Section 702 of FISA underscores the disturbing trend of our federal government being weaponized against its people,” he said. “The blatant misuse of warrantless surveillance powers targeting Americans’ communications should not be accepted or reauthorized.
“We must uphold national security without sacrificing the constitutional rights of our fellow Americans,” he added.
In the bill, Mr. Gaetz provides a rationale for the decision to sunset the measure.
“The Intelligence Community has not been forthright about its use of section 702 authorities over the 15 years that section 702 has been authorized,” the resolution states.
Though Section 702 was ultimately reauthorized and signed into law by President Donald Trump in 2017, that bill placed new requirements on the intelligence community (IC), forcing it to publicly disclose information about its Section 702 queries of Americans.
But after the bill was passed, the IC for 21 months sought to avoid having to meet this requirement. It was only after the Foreign Intelligence Surveillance Court (FISC)—the secretive FISA watchdog—ruled that the IC had to follow the law as amended in 2017 that the agencies agreed.
“This Congress is aware of multiple abuses of the section 702 data collection process through released court decisions and aggregated data, which in itself is an adequate basis to sunset the program,” the resolution states.
The FBI, which has faced constant scrutiny since Republicans took the House, was also called out in the bill.
“The FBI itself has conducted 702 queries with callous disregard of the privacy rights of Americans,” it states.
Mr. Gaetz referenced work in the House Select Subcommittee on the Weaponization of the Federal Government, saying that that panel had discovered these abuses were “not incidental, but rather a pattern of behavior warranting the sunset of section 702.”
Mr. Gaetz headed off national security concerns by saying that traditional FISA standards such as existed prior to the authorization of Section 702 were sufficient to protect national interests while balancing civil liberties, and gave the balance of interest much more to civil liberties than Section 702.
Mr. Massie was more direct in comments to the Epoch Times about national security concerns.
“Get a warrant,” Mr. Massie said.
“This is written into our Constitution. FISA, allegedly, is some piece of legislation that doesn’t have to abide by our Constitution,” he added, referring to the Fourth Amendment that protects against unreasonable searches and seizures.
“And so I think it’s right to make the default position to kill it. Can it be saved? I don’t know. But we should kill it first”
Mr. Massie said he was optimistic that the provision could be killed simply due to dwindling support for the measure.
While he refrained from speaking for House Judiciary Committee Chairman Jim Jordan (R-Ohio), he said that Mr. Jordan’s opposition to renewing Section 702 as it exists would be a key element in blocking a wholesale renewal of the program.
He noted that Congress had tried for 10 years to renew the program with various additions, but suggested that the use of the program against President Donald Trump’s associate Carter Page had cemented Republican opposition to the program.