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Durbin, Lee pitch ‘compromise’ bill to renew Section 702 authority

Congress has been divided over what privacy protections to add to reauthorize the surveillance program

Senate Judiciary Chair Richard J. Durbin, left, is introducing the compromise measure with Sen. Mike Lee, who has been vocal about opposing a Section 702 reauthorization without changes.
Senate Judiciary Chair Richard J. Durbin, left, is introducing the compromise measure with Sen. Mike Lee, who has been vocal about opposing a Section 702 reauthorization without changes. (Tom Williams/CQ Roll Call)

Senate Judiciary Chair Richard J. Durbin outlined new legislation Thursday that would renew a powerful surveillance authority but also require court approval for certain information collected under the program.

The Illinois Democrat during a floor speech pitched the bill as a “compromise” measure that would bridge the gap between competing proposals in the House and Senate to reauthorize Section 702 of the Foreign Intelligence Surveillance Act.

There’s widespread agreement in Congress that the spy authority must be renewed before it expires in April, but lawmakers have been bitterly divided, particularly in the House, over how far they should go in providing privacy protections on American information that’s swept up under the program.

“I know that compromise does not come easy when it comes to this policy,” Durbin said on the floor. “But a reasonable middle ground that protects our national security and the rights of the American people is possible.”

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.

Durbin’s office said he is introducing the legislation with Sen. Mike Lee, R-Utah, who has been vocal about opposing a reauthorization without changes. A main point of contention is whether lawmakers should install a warrant requirement regarding information on Americans.

Lee, in an interview with “The Benny Show,” said he has raised concerns with FBI directors appointed by three different presidents. “They all say a variation of the same thing: ‘Don’t worry about it. We got good people. We’re not going to spy on people.’ It turns out they’ve done exactly what they claimed they would not do hundreds of thousands of times, and it’s got to stop.”

The legislation would require intelligence agencies to get a warrant or an order under Title I of FISA before they accessed the content of American communications, but not before they run searches, Durbin’s office said in a press release.

That proposal does not appear to go as far as a bipartisan measure approved by the House Judiciary Committee, which would put in place a robust warrant requirement regarding searches for information on Americans, with certain exceptions.

Durbin said on the floor that his proposal would require the U.S. government to show a court that it has probable cause “before reading or listening to the private communications of Americans that have been swept up by Section 702.” The probable cause requirement would “not be overly burdensome, because a warrant would only be required in cases where the government actually reviews the content of American communications,” Durbin said.

The legislation, he said, would not stop government officials from searching Section 702 databases to find out if foreign targets are communicating with Americans. The Illinois Democrat said his legislation would also not require a warrant in situations involving “exigent circumstances” or cybersecurity attacks, something aimed at preventing any delay that could jeopardize national security.

The Privacy and Civil Liberties Oversight Board has reported that the “vast majority” of the FBI’s searches for information on Americans return no results.

The House has tried and failed twice to hold a floor vote on Section 702 reauthorization legislation because of disagreements among lawmakers that are not along the typical partisan lines. There are no clear signs on where Congress will land on the topic with a little over a month until the authority expires.

Intelligence-focused lawmakers say changes are needed to Section 702 but also defend FISA, describing the law as a critical tool in protecting national security. Privacy advocates say the warrantless searches allowed by Section 702 infringe on the Fourth Amendment and the U.S. government has repeatedly misused the authority.

Members of the House Intelligence Committee this week used a public hearing to emphasize the importance of the program.

Under questioning from Republican Rep. Darin LaHood, FBI Director Christopher Wray doubled down on his opposition to the idea of a warrant requirement.

“A warrant requirement would effectively gut the FBI’s ability to use 702 to protect Americans,” Wray said.

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