A senior Democratic aide familiar with the negotiations called the section a “legislative scandal”, telling WIRED: “There are many members who don’t properly understand the ins and outs of this legislation. By tossing the phrase ‘requires the Fourth Amendment’ into the bill the Speaker and the intelligence community are acting to trick them into supporting a bill that has no meaningful constitutional safeguards.”
Section 5 directs the US Attorney General to rescind existing rules on congressional access to the secret court that oversees the 702 program and issue new ones within 60 days. This provision is not self-enforcing: the reach it promises is only as broad as the Attorney General wants to make it.
Section 6 is the only provision in the Bill with any potential sting. It strikes the language of existing law that allows any employee of FBI supervisor, or equivalent rank, to approve a query of the 702 database using a US identifier, and leaves the decision up to an attorney. However, the same lawyers sit in the category of career employees that the administration reclassified as at-will last month.
Finally, Section 7 orders the Government Accountability Office to audit the program’s targeting processes within one year and report to the House and Senate Intelligence and Judiciary Committees. The audit is non-binding. Whether this produces anything of value depends on whether the intelligence community provides GAO with real access to the technical systems it needs to examine.
The bill’s Democratic support is being led by Representative Jim Himes, a Connecticut Democrat who serves as the ranking member of the House Intelligence Committee. Himes, a member of the Gang of Eight who was briefed on the bureau’s most sensitive operations, has largely justified his position by saying that he is personally unaware of any abuses of the program under the current administration—an appeal to ignorance that sits uncomfortably alongside his reliance on compliance numbers produced by the FBI oversight office, which Patel shut down 11 months ago.
Himes is facing pressure from within his district. On Thursday, a coalition of Connecticut organizations called on him to step down as ranking member, accusing him of “helping Donald Trump maintain warrantless surveillance” and “falsely and repeatedly claiming that intelligence agencies do not buy data to broker information on people in the United States.”
Himes did not immediately respond to a request for comment. In a previous statement, he told WIRED that he had seen “zero evidence of abuse” of the 702 program under the Trump administration, called Section 702 the country’s “most important and most strictly monitored foreign intelligence collection tool,” and said he would urge members to reauthorize the program if he found no suggestion that the administration was using Section 702 for “illegal or improper purposes.”
“The latest House FISA bill is a rubber stamp for Trump and Kash Patel to spy on Americans without a warrant,” Senator Ron Wyden, who sits on the Senate Intelligence Committee, said in a statement. “Don’t fall for fake reforms. Tell anyone who will listen, Americans need to stop warrantless surveillance. Instead of ending warrantless surveillance or creating more transparency about government spying, this bill just requires a few more Trump administration officials to check a box. This always leads to more abuses, not less.”
Former Republican House Judiciary Chairman Bob Goodlatte, now with the non-partisan Project for Privacy and Surveillance Accountability, tells WIRED that the bill’s key provision is intended to sway members on the fence by merely reinstating conduct “already prohibited by law” and creating no real barriers to FBI agents determined to search Americans’ private communications.
“It’s a disappointment,” Goodlatte says. “But I’m encouraged by the fact that 228 House members voted against clean reauthorization of a similar resolution last week. Sixty percent of Republicans voted for the warrant requirement two years ago. It’s not over yet.”
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