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House Judiciary panel advances renewal of surveillance authority

First committee action this year on Section 702 of FISA, which expires at end of month

Rep. Jim Jordan, R-Ohio, chairman of the House Judiciary Committee, is seen at the Capitol in October.
Rep. Jim Jordan, R-Ohio, chairman of the House Judiciary Committee, is seen at the Capitol in October. (Tom Williams/CQ Roll Call)

The House Judiciary Committee approved a bill Wednesday that would add a warrant requirement to a powerful spy authority, striking a bipartisan tone on a panel that’s often known for party-line acrimony.

The panel voted 35-2 to advance amended legislation that would renew Section 702 of the Foreign Intelligence Surveillance Act for three more years but would insert a warrant requirement when it comes to information on Americans, with certain exceptions.

Those exemptions include situations where there’s an emergency involving an “imminent threat of death or serious bodily harm,” and situations in which a “cybersecurity threat signature” is used as a search term to prevent harm from malicious software.

The bill would also “drastically” lower the number of FBI officials who are authorized to conduct a search of a U.S. person, according to a House Judiciary Committee advisory.

The surveillance authority expires at the end of the year, and the committee approval is the first vote this year on legislation to reauthorize the program. The Judiciary Committee action comes as Congress grapples with conflicting proposals about how far lawmakers should go in providing privacy protections to American information collected under the program.

Section 702 allows the U.S. government to collect digital communications of foreigners located outside the country. But the program also sweeps up the communications of Americans and allows the FBI to search through data without a warrant using information such as an email address.

Some conservatives and progressives have joined forces and want to see a warrant requirement put into the law, arguing the searches for information on Americans violate the Fourth Amendment.

Meanwhile, national security-focused lawmakers say the program is critical to national security. The Biden administration and the FBI have rejected the idea of adding a warrant requirement, saying it would undercut the effectiveness of Section 702.

At several points during the House Judiciary meeting on Wednesday, lawmakers thanked their colleagues across the aisle for their work on the issue — signs of comity on a panel that’s often defined by partisan tensions.

“Bipartisan. It is not a word often used to describe our committee,” Rep. Jerrold Nadler of New York, the top Democrat on the panel said. “But the process that led to this bill was one of true bipartisanship, one where members on both sides of the aisle sat down together to find common ground.”

“FISA reform will only be successful when we work together. And I thank the chairman for allowing that bipartisan process to play out,” Nadler said.

Rep. Andy Biggs, R-Ariz., a key lawmaker in the Section 702 debate, joined in that spirit by thanking Nadler and Reps. Zoe Lofgren, D-Calif. and Pramila Jayapal, D-Wash.

At the meeting, Biggs accused the FBI and federal intelligence agencies of using “scare tactics to convince Congress that these unchecked powers are the only method available to protect our nation from harm.”

“The FBI has misused privileged spying powers to conduct rogue surveillance on innocent Americans. We cannot allow that to continue,” Biggs said.

Jayapal, who is chair of the Congressional Progressive Caucus, said the legislation is a “huge step forward to protecting Americans’ privacy and civil liberties by simply requiring the government to get a warrant before searching for Americans’ communications.”

The legislation also goes further than making changes to Section 702. Supporters say the measure would bolster third-party input in the FISA process and would prohibit the U.S. government from buying certain types of Americans’ data.

Reps. Eric Swalwell, D-Calif., and Hank Johnson, D-Ga., voted against the legislation.

Swalwell argued the legislation would hamper the U.S. government’s ability to investigate the connections of foreign terrorists. He said the measure would leave the nation “in the blind” and take the U.S. back to the days before Sept. 11, 2001.

“And I would suggest to you, Mr. Chairman, it’s not an accident that we have not had a serious terrorist attack in America since Sept. 11,” said Swalwell.

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