Reforming Intelligence and Securing America Act
Floor Speech
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Mr. NADLER. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, I rise in strong support of meaningful reform to FISA section 702 and in strong opposition to a mere fig leaf or, even worse, an expansion of 702. Unfortunately, we will not know which of these paths we are taking until the conclusion of this debate.
What I know at this moment is that the base text before us right now is completely inadequate. Although it has some perfectly fine provisions, it does not represent real reform. Some of the proposed amendments that will be coming up today would take us in the wrong direction, and changing the sunset from 5 years to 2 years does absolutely nothing to improve the bill.
Ultimately, this legislation should only move forward if it contains an amendment to mandate that the intelligence community obtain a probable cause warrant before they search the 702 database for Americans' private communications.
Some of my colleagues appear confused about how 702 collection works and what we mean when supporters of a warrant requirement refer to ``backdoor searches'' for U.S. person information. Let's be clear about what we are talking about.
FISA section 702 permits the intelligence community to sweep up the communication of foreign targets located overseas. When these communications are obtained, they go into what is known as a 702 database where all the 702 data is housed.
If the U.S. Government wants to target a U.S. person for foreign surveillance, U.S. person meaning an American or legal permanent resident, they already can. They do this by getting a warrant under title I of FISA, a separate and distinct part of FISA from section 702. The government cannot target Americans under 702 because 702 does not protect the constitutional rights of the targets of the surveillance. Foreigners not located on U.S. soil do not have constitutional rights, so this is not a problem.
What is a problem, however, is that massive amounts of Americans' communications are still swept up in 702 searches. If a U.S. person communicates with a foreign target, that American's communications with the target end up in the 702 database, too. While we do not know precise numbers, we know that a vast amount of Americans' communications is swept up every year.
The intelligence community is not supposed to search the 702 database for U.S. person identifiers, like our names, phone numbers, and addresses without cause. Searching for Americans' private communications in the 702 database, communications the government otherwise would not have access to without a warrant, is the constitutional equivalent of conducting a warrantless search.
We know that the government breaks this law all the time--278,000 times, in fact, at last count in 2021 alone. Officials are supposed to find it reasonably likely that a query will turn up evidence of a crime or foreign intelligence information, but that did not stop them from searching for protesters, politicians, and political donors, to name a few, without proper predicate.
Because of these repeated violations, Chairman Jordan and I agree that the only way to preserve Americans' privacy and constitutional rights is to require the intelligence community to obtain a probable cause warrant when they want to search the communications of Americans housed in the 702 database. This is a basic tenet of the Fourth Amendment.
Now, Chairman Turner stated incorrectly that the proposed warrant requirement gives constitutional rights to suspected terrorists abroad. Nonsense. The warrant requirement does not change any aspect of surveillance of valid targets under section 702, nor should it. The problem is that when we surveil the internet, we sweep up massive amounts of U.S. person information, and the warrant requirement we propose would apply the Fourth Amendment to that information--nothing more, and our Constitution demands nothing less.
We have repeatedly heard some of our colleagues tell us that the sky is falling; that a probable cause requirement would end U.S. person searches of the 702 database, but there are no facts to back up these claims.
We will be considering an amendment today to add a warrant requirement for U.S. person searches of the 702 database. This essential amendment makes exceptions for victim consent, cybersecurity cases, and exigencies, that is, emergencies. Thus, the vast majority of these searches can continue without a warrant, but for the small percentage of searches of Americans' communications that would be affected, the government should have probable cause to search their communications.
It is simply unfair to ask the intelligence community to both zealously protect our security while also protecting the constitutional rights of those surveilled. America's system of checks and balances exist precisely for cases such as this, where two considerations must coexist at odds with one another.
For too long, FISA section 702 has enabled the surveillance of Americans without adequate safeguards to protect our civil liberties. Americans need Congress to enact these guardrails, and with section 702 expiring soon, we have a rare opportunity to protect Americans' privacy while giving enforcement the tools they need to keep us safe.
Mr. Chair, I encourage my colleagues to vote ``no'' on this legislation unless a probable cause warrant is adopted, and I reserve the balance of my time.
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Mr. NADLER. Mr. Chair, I yield 3 minutes to the distinguished gentlewoman from Washington (Ms. Jayapal).
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Mr. NADLER. Mr. Chair, I yield 4 minutes to the distinguished gentlewoman from Texas (Ms. Jackson Lee), the ranking member of the Crime and Federal Government Surveillance Subcommittee.
Ms. JACKSON LEE. Mr. Chair, I thank the distinguished ranking member of the Judiciary Committee and the chairman of the Judiciary Committee.
Even in this time of 2024, we need this legislation to protect now one of the most revered civil rights leaders, Dr. Martin Luther King. Yes, we need legislation that would, in fact, protect someone who simply wanted to provide justice to this Nation. He was the subject of COINTELPRO, a distorted investigation of his family, his belongings, his extended family members, and his wife, who I think at the time was expecting.
This legislation is important to save lives. It is important legislation to ensure that our intelligence community, our law enforcement community, can do their jobs, but it is not legislation that should be utilized to abuse the American people.
I rise today to speak of the concerns on H.R. 7888. It is a bipartisan bill to reauthorize an essential intelligence authority, section 702 of the Foreign Intelligence Surveillance Act, FISA, and other FISA provisions before they would expire on April 19. In doing so, we find ourselves being subject to the eye of the knife, if you will, in penetrating the personal matters of individuals that have no desire to do harm to this country.
As we know all too well, expiration of 702 authorities would deprive our Federal Government of the necessary insight into precisely the threats Americans expect their government to identify and counter. We understand that, as highlighted and emphasized through Federal administration, if we lose 702, we lose vital protections to the United States and its allies from hostile foreign adversaries, including terrorists, proliferators, and spies, and to inform cybersecurity efforts.
We are also acutely aware that 702 is an extremely controversial, warrantless surveillance authority that must not be reauthorized without substantial reform to rein in warrantless surveillance of Americans. We simply cannot do that. Indeed, warrantless surveillance intended for non-American targets located abroad inevitably has resulted in the collection and capture of Americans' communications and, yes, the results of capturing information that safeguards the American people and provides us with a safety net that we can fight for justice, fight for civil rights, and yet be protected.
It is no secret that intelligence agencies have turned section 702 into a domestic spying tool used to perform hundreds of thousands of warrantless backdoor searches for Americans' private phone calls, emails, and text messages.
By the way, Mr. Chair, we have a whole new world of technology where you can probe every aspect of our lives. These searches have included shocking abuses, including against civil rights leaders, protesters, Members of Congress, 19,000 donors to congressional campaigns, political parties.
Mr. Chair, I rise today to speak on H .R. 7888--Reforming Intelligence and Securing America Act (RISAA), a bipartisan bill to reauthorize an essential intelligence authority, Section 702 of the Foreign Intelligence Surveillance Act (``FISA''), and other FISA provisions before they would expire on April 19, 2024.
As we know all too well, expiration of Section 702 authorities would deprive our federal government of the necessary insight into precisely the threats Americans expect their government to identify and counter.
As highlighted and emphasized through federal administration, if we lost 702, we would lose vital protections to the United States and its allies from hostile foreign adversaries, including terrorists, proliferators, and spies, and to inform cybersecurity efforts.
We also are acutely aware, that Section 702 is an extremely controversial warrantless surveillance authority that must not be reauthorized without substantial reform to rein in warrantless surveillance of Americans.
Indeed, warrantless surveillance intended for non-American targets located abroad ``inevitably'' has resulted in the collection and capture of Americans' communications, too.
And it is no secret that intelligence agencies have turned Section 702 into a domestic spying tool, using it to perform hundreds of thousands of warrantless ``backdoor'' searches for Americans' private phone calls, e-mails, and text messages every year.
Yes, these searches have included shocking abuses, including baseless searches for the communications of Black Lives Matter protesters, members of Congress, 19,000 donors to a congressional campaign, a local political party, and tens of thousands of people involved in ``civil unrest.''
To protect the American people, we need to maintain the vital collection authority as intended to protect our nation and national security, while at the same time strengthening its protective guardrails with the most robust set of reforms ever included in legislation to reauthorize Section 702.
Importantly, H.R. 7888, as amended here today provides several critically needed reforms--including a fix to the backdoor search loophole and a prohibition on the ``abouts'' collection provision, and ultimately seeks to accomplish the necessary balancing we seek for national security protections and the protection of American's privacy rights.
To protect the American people, we need to maintain the vital collection authority as intended to protect our Nation and national security. We must do that while at the same time strengthening its protective guardrails with the most robust set, if you will, of protection that we possibly can.
That is why I have joined with several Members, including Mr. Cline, to offer the ``abouts'' amendment. We will offer that as one of the Judiciary three. This amendment does something Congress should have done 7 years ago, prohibit the government from resuming ``abouts'' collection, a form of section 702 that poses unique risks to Americans. ``Abouts'' collection is a collection of communications that are neither to nor from an approved target of surveillance--can you imagine?--under section 702 of FISA but merely contain information related to the target.
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Mr. NADLER. Mr. Chair, I yield an additional 30 seconds to the gentlewoman from Texas.
Ms. JACKSON LEE. Mr. Chair, it is unbelievable that we would go after innocent Americans and Members of Congress in the random searching and fishing of information that may not be relevant. In the past, ``abouts'' collection focused on collecting communications that include a target's email address, phone number, or Twitter handle or something like that, but in theory, ``abouts'' collection could be used to collect emails that merely mention a person who is a target of section 702 surveillance.
Mr. Chair, I rise today to indicate that we cannot pass this legislation without these vital amendments and that we cannot pass this legislation without the American people believing that when they pledge allegiance to the flag of the United States of America, they are pledging allegiance to civil liberties, freedom, and justice and equality for all. I rise to support these amendments and as well a free nation with democracy and liberty for all.
Mr. Chair, I include in the Record a list of groups who support this amendment. Congress of the United States, Washington, DC, April 12, 2024.
Dear Colleague: Please join us in supporting our amendment to H.R. 7888, the Reforming Intelligence and Securing America Act. Rules Amendment #5 would end what is known as ``abouts'' collection, which involves the capturing of massive amounts of communications by government agencies such as the National Security Agency (NSA) in which the selector, for example, an email address, of a target appears somewhere in communications, even if that target is not a party to the communications. It has long been controversial.
The FISA Court previously discovered that the government had misrepresented its activities and held that handling this type of data was of significant concern and a violation of the Fourth Amendment. Although the NSA abandoned the practice of ``abouts'' collection in 2017, Congress in 2018 amended FISA to prohibit this type of collection unless the AG and DNI notify the House and Senate Intelligence and Judiciary Committees of its plans to resume such collection. But that only means that if the NSA notifies Congress, they can resume ``abouts'' collection at any time. Our amendment would proactively end the practice for good.
The following groups support this important amendment:
FreedomWorks--Key Vote; Due Process Institute; Americans for Prosperity; Project for Privacy and Surveillance Accountability; Reform Government Surveillance; Center for Democracy and Technology; American Civil Liberties Union; Electronic Privacy Information Center (EPIC); Restore the Fourth; Defending Rights & Dissent; Brennan Center for Justice; Wikimedia Foundation.
Demand Progress; Electronic Frontier Foundation; Project on Government Oversight; United We Dream; Asian Americans Advancing Justice; Muslim Advocates; Free Press Action; National Association of Criminal Defense Lawyers; Freedom of the Press Foundation; New America's Open Technology Institute; Fight for the Future; Stop AAPI Hate.
We urge you to vote in favor of Amendment #5. Sincerely, Ben Cline, Member of Congress. Sheila Jackson Lee, Member of Congress.
Ms. JACKSON LEE. Mr. Chair,
I rise today in support of the Cline (VA)/Jackson Lee (TX) Amendment [#3] to H.R. 7888--Reforming Intelligence and Securing America Act (RISAA).
This amendment does something Congress should have done seven years ago: prohibit the government from resuming ``abouts'' collection, a form of Section 702 surveillance that poses unique risks to Americans.
``Abouts'' collection is the collection of communications that are neither To nor From an approved target of surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA), but merely contain information relating to that target.
In the past, ``abouts'' collection focused on collecting communications that include a target's email address, or phone address, or Twitter handle, or something like that. But in theory, ``abouts'' collection could be used to collect emails that merely mention a person who is a target of Section 702 surveillance.
Nothing in the text or legislative history of Section 702 indicates that this type of surveillance is authorized.
Under Section 702, the surveillance must target a non-U.S. person outside the United States. The term ``target'' has a well-understood meaning. When a person is a target, it means the government can collect that person's information or other data, not the communications or data of other individuals.
As we all know, ``abouts'' collection under Section 702 has a sordid history.
The National Security Agency (NSA) used ``abouts'' collection when it was conducting upstream surveillance, in other words, when it was intercepting communications directly as they transited over the Internet backbone, rather than collecting stored communications from service providers.
Not surprisingly, this practice resulted in the collection of tens of thousands of purely domestic communications--communications between and among Americans inside the United States.
Moreover, often these Americans were not even discussing the target. Instead, their communications were lumped in with other communications, transiting over the Internet backbone as a packet. The NSA was collecting the entire packet of communications, simply because somewhere in that packet was a reference to information about a target.
This was a problem from the moment Section 702 went into effect in 2008. And yet for years, the government did not disclose this problem to the FISA Court.
To the contrary, the government affirmatively misrepresented how the program was working. It was not until 2011 that the court learned the government was sweeping in tens of thousands of purely domestic communications.
The court was livid. It noted that the belated disclosure, and I quote, ``marks the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.''
At the time, the court chose not to prohibit the use of ``abouts'' collection. But it held that special minimization rules were required for upstream communications, and that without those rules, the program would violate both Section 702 and the Fourth Amendment. One of those rules was a prohibition on U.S. person queries of communications obtained through upstream surveillance.
Five years later, the NSA discovered that its agents had been routinely violating this prohibition. But rather than immediately report these violations to the FISA Court, the NSA waited for several months. When it finally admitted the violations, the FISA Court chastised the NSA for its ``institutional lack of candor,'' and refused to approve the continuation of Section 702 surveillance until the NSA cleaned up its act.
The NSA proved incapable of bringing its agents into compliance. The agents continued to routinely search though the upstream data in an effort to find and review Americans' communications, in violation of Section 702, the Fourth Amendment, and the FISA Court's orders. Well aware that the court would not continue to approve Section 702 surveillance under these conditions, the NSA, in 2017, made the only decision it could: it terminated ``abouts'' collection.
Well, it has now been seven years since the NSA stopped ``abouts'' collection, and the government has not claimed that ending this practice has resulted in a loss of critical intelligence or had any other kind of negative impact on national security. No official has pointed to a single bad result that could have been averted through the use of ``abouts'' collection.
Collecting communications that are neither to nor from an approved target of surveillance is contrary to the text and intent of Section 702.
It inevitably results in the collection of wholly domestic communications, which Section 702 expressly prohibits.
Over the course of a decade, the NSA proved that it was incapable of operating ``abouts'' surveillance responsibly and in accordance with the law--and the past seven years shown that ``abouts'' collection is not necessary for national security.
It is time for Congress to shut the door on ``abouts'' collection.
In the future, if the government can show that it needs ``abouts'' collection for national security purposes and that it can operate the program without violating the law and the Fourth Amendment, it can come to Congress and ask for authorization. But the burden should be on the government to show the need and the ability to lawfully conduct the program.
For these reasons, I urge my colleagues to vote in favor of the Cline/Jackson Lee Amendment [#3].
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Mr. NADLER. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, the suggestion has been made that the warrant requirement is extreme. Let's be clear: There is nothing extreme about this idea.
Over a decade ago, a group of intelligence experts convened by President Obama unanimously recommended requiring a warrant for U.S. person queries of section 702 data. That group included Michael Morell, former Acting Director of the CIA and Richard Clarke, former Chief Counterterrorism Adviser to President George W. Bush.
These top national security officials understood that we can protect national security while respecting the Fourth Amendment rights of Americans.
The House of Representatives has twice passed amendments with a warrant requirement for backdoor searches by large bipartisan majorities. Some of my colleagues who spoke against this amendment today, including former Speaker Pelosi, have voted more than once for this reform.
Over 75 percent of Americans support this reform. Calling something extreme doesn't make it extreme, and this is an idea that has been in the mainstream for over a decade.
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Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.
Chairman Jordan and I agree on very little, but we are united in our belief that adding a warrant requirement to section 702 is absolutely necessary before we consider supporting reauthorization of these authorities.
I will reserve judgment on final passage of this bill until we see what amendments pass, but I urge Members to join us in supporting real reform. Real reform means, at the minimum, the warrant requirement to give effect to Americans' constitutional rights.
Mr. Chair, I yield back the balance of my time.
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Mr. NADLER. Mr. Chairman, I rise in support of this absolutely essential amendment.
In 2021, the intelligence community conducted over 278,000 inappropriate searches of Americans' private communications. They broke the law more than 278,000 times.
Mr. Biggs and I do not agree on much, but we agree that the status quo is unacceptable. Without a probable cause warrant requirement, it is clear that the intelligence community will go on breaking the law and violating Americans' rights in the process.
As I have said again and again, if the government wants to peruse the private communications of Americans, they can go to title I of FISA. Section 702 has fewer privacy protections because it is meant for foreigners located overseas--people who do not have constitutional rights.
Any Americans' data we collect under 702 is collected at a standard far below the Fourth Amendment, and that should not be.
I strongly support this amendment, and I encourage my colleagues to vote ``yes.''
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