The Contentious Issue of FISA Reauthorization: Speaker Johnson Treads a Political Tightrope
House legislators are set to return to Washington this week, facing a divisive issue: the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA). This major and controversial law, which allows warrantless surveillance of foreigners but incidentally collects communications data of American citizens as well, has long been a subject of debate.
The Republican Party is deeply divided on this matter, putting immense pressure on Speaker Mike Johnson to find a solution amid competing factions within his conference. With the threat of a vote on his ouster looming, every move made by the Louisiana Republican will be under intense scrutiny, leaving him potentially at odds with his right flank once again.
Section 702 of FISA enables the US intelligence community to collect communications records of foreign persons based overseas, but it also permits the FBI to search this data for information pertaining to American citizens. Critics have referred to this as a “backdoor” search, raising significant concerns.
The politics surrounding FISA have historically brought unusual alliances together: conservative Republicans and progressive Democrats have collaborated to advocate for reforms, while security-focused Democrats and Republicans have opposed major new restrictions. The primary point of contention remains whether the FBI should be required to obtain a warrant before querying the database for information on US citizens.
Johnson has announced that the House will consider a FISA reauthorization bill this week, titled the Reforming Intelligence and Securing America Act. Introduced by Rep. Laurel Lee (R-FL), the bill aims to extend Section 702 for five years and introduces several reforms. On Tuesday, the House Rules Committee will begin considering this legislation, with a set of amendments expected to be put to a vote.
One proposed amendment would impose an additional warrant requirement, but its passage could pose a threat to the bill’s chances of making it through the Senate. Some Republicans – along with the Biden administration – argue that such reforms would weaken the effectiveness of a tool considered crucial by national security officials for countering threats against the United States.
The Biden administration has publicly and privately advocated for FISA’s reauthorization with minimal changes, including actively opposing any form of a warrant requirement. Intelligence officials are reportedly concerned that the program might be renewed with such a provision, making it impossible for the Justice Department to utilize Section 702 to disrupt genuine and urgent threats.
Authority for Section 702 was extended through April 19 as part of the National Defense Authorization Act. In December, House leadership withdrew two surveillance law bills from the floor due to internal GOP divisions. In February, a spokesperson for the speaker stated that the House would address FISA reform “at a later date” to enable more time to reach consensus on a path forward.
The searches of US persons’ information are regulated by internal rules and procedures designed to protect Americans’ privacy and civil liberties. Critics claim, however, that these rules contain loopholes, allowing the FBI to search data it collects for Americans’ information without proper justification.
Public disclosures about compliance issues within the FBI have further fueled a bipartisan sense on Capitol Hill that the authority has been inappropriately used. Additionally, conservative Republicans have targeted FISA following revelations of its misuse against Trump campaign aide Carter Page.
Privacy and civil liberties advocates have long called for reforms, but Congress has thus far resisted change due to strong opposition from various administrations. Intelligence officials are concerned that this time may be different and that the current political climate could lead to significant modifications or even the sunsetting of Section 702.
Johnson acknowledged the importance of FISA and Section 702 in a recent letter to colleagues, stating that these tools have been crucial for intercepting communications of dangerous foreign actors overseas and saving American lives. He emphasized the need to maintain the tool while strictly prohibiting future abuses, incorporating reforms that establish new procedures to rein in the FBI, increase accountability at the Foreign Intelligence Surveillance Court (FISC), impose penalties for wrongdoing, and institute unprecedented transparency across the FISA process.