Two bills, the bipartisan and bicameral Government Surveillance Reform Act (GSRA) and H. R. 7816, the Protect Liberty and End Warrantless Surveillance Act (PLEWSA), have been introduced. They would restore desperately needed privacy protections from the government for people in the United States, while also creating a path to reauthorize the controversial surveillance authority known as “Section 702” of the Foreign Intelligence Surveillance Act (FISA). This authority is set to expire April 20, 2026, unless Congress takes action to reauthorize it.
Restore The Fourth endorses both bills, and urges Judiciary Committee members in both the House and Senate to mark up a bill that takes the best parts of GSRA, PLEWSA, and Senators Durbin and Lee’s recently introduced Security and Freedom Enhancement (SAFE) Act.
Under no circumstances should FISA Section 702 be reauthorized without reform. Reports indicate that Intelligence Chair Rick Crawford (R-AR-01) and House Majority Leader Steve Scalise (R-LA-01), backed by the Trump administration, plan to advance a clean 18-month extension of FISA Title VII. This is unacceptable, and we urge lawmakers to reject a rule to bring up this controversial power for a suspension vote on clean reauthorization, and to vote NO if such a proposal comes to the floor for a vote. A uniquely broad and bipartisan coalition of members of Congress and organizations have made it abundantly clear since before this last came before Congress in 2024, that FISA Section 702 must not be authorized without critical reforms. This is the only viable path forward to protect our Fourth Amendment civil liberties.
“The Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act, contain critical reforms to protect U. S. persons from unreasonable and warrantless government surveillance. They would rein in AI-driven misuse of NSA classified databases to spy on U. S. persons without probable cause or a warrant; make much less likely that Americans would be harassed or prosecuted on the basis of poor-quality data held on them by data brokers; make it easier for people unfairly surveilled to get redress from the courts. We warmly encourage the Judiciary Committees in the House and the Senate to mark up a bill that takes the best parts of this bill, Senator Lee’s and Senator Durbin’s SAFE Act and Rep. Biggs’ Protect Liberty Act, before the sunset of these authorities in April.” – Alex Marthews, National Chair, Restore The Fourth
About FISA 702
FISA Section 702, enacted in the FISA Amendments Act of 2008, authorizes warrantless surveillance of non-U.S. persons located outside of the U.S. The NSA maintains a long list of 300,000 foreign “targets” whose communications are of “foreign intelligence interest to the United States.” The digital data of these targets, including communications content and metadata, are collected from internet service providers and off the “internet backbone.” In addition, the expansion of FISA passed in 2024 authorizes warrantless collection under this authority of any of the tens of millions of people who seek admission to the US every year, whether as tourists, students, workers or applicants for naturalization. This surveillance inevitably sucks up enormous quantities of Americans’ data because Americans communicate with foreigners. Thus, though this is misleadingly called “foreign intelligence collection” under the “Foreign Intelligence Surveillance Act”, the FISA 702 process is designed to expose to the government, without a warrant or suspicion of involvement in any crime, the communications of tens of millions of Americans as well.
Under the bills we support, if the government wanted to access Americans’ communications in the 702 database, it would have to get a warrant in the course of a criminal investigation or a FISA Title I order for a foreign intelligence investigation. Despite Congressional directives to minimize the use and retention of U.S. persons’ communications, the FBI has relentlessly abused its access to 702 data on a “persistent and widespread” basis, across multiple administrations of different parties, to surveil Americans. These “backdoor searches” include: thousands of protesters exercising their First Amendment rights, 19,000 donors to a Congressional campaign, journalists, members of Congress, a state court judge, crime victims, and people targeted solely for their race or ethnicity. The FBI conducted over 57,000 backdoor searches in 2023 alone.
The Reforming Intelligence and Securing America Act (RISAA) reauthorized FISA 702 in April 2024. Upon final passage, RISAA did not include a warrant requirement, nor the text of the Fourth Amendment Is Not For Sale Act (FAINFSA), which would have strictly limited government purchases of data from data brokers. RISAA codified internal FBI procedures intended to reduce warrantless querying, but these minor adjustments proved inadequate. Reporting released by ODNI claimed there was a 90% decrease in the FBI’s number of U.S. person queries, down to 5,500 from December 2023 to November 2024 (post-RISAA), but an internal change in practice at the FBI means that nobody knows how real those figures are. Analysts performed searches of the 702 database using an “advanced filter function,” which the National Security Division (NSD) confirmed involved queries of raw information, and which weren’t logged as queries. NSD lacks access to data and logs necessary to determine if query requirements were met when using the filter function. It also emerged in the last two weeks that AI firms like Anthropic and OpenAI have already agreed with the government to feed the entirety of the 702 database, as an “NSA classified foreign intelligence database”, into their LLMs, for the government to exploit without it even counting as a “query.” Even more terrifyingly, there’s stuff happening under Section 702 that the public doesn’t even know about yet; Senator Wyden (D-OR), a long-time member of the Senate Intelligence Committee, warned this week on the Senate floor that there is “secret law” – assumedly, a secret memo from the Office of Legal Counsel – relating to a classified use of Section 702 that would “stun the American people” if it were made public.
Why RT4 Endorses Both GSRA and PLEWSA
We endorse GSRA and PLEWSA because the texts contain provisions that address our core reform priorities, with varying degrees of success:
- A warrant requirement for U.S. person queries (GSRA Sec. 101, Sec. 402 and PLEWSA Sec. 101, with PLEWSA’s warrant requirement more thoroughly covering metadata queries);
- Closing the “Data-Broker Loophole” to rein in government acquisition and abuse of commercially available information purchased from data brokers and other private entities (GSRA Title II/Sec. 402 and 404; PLEWSA Sec.202);
- Fixing the expanded definition of an electronic communications service provider (ECSP), which allowed NSA to secretly and without a warrant tap almost any business network in the United States; this expansion passed in RISAA in 2024 (GSRA Sec.109 and PLEWSA Sec.102/Sec.203);
- Expanding the role of amici in FISC proceedings to ensure civil liberties and privacy interests are represented in what is otherwise a one-sided proceeding (GSRA Sec. 307; PLEWSA Sec.104);
- Ensuring timely notification to those who have been surveilled under Section 702 and proper avenues for redress of Constitutional rights violations (GSRA Sec.310);
- Addressing AI integration with FISA 702 data in light of the recently signed contract between DoD and OpenAI, and (GSRA Sec. 101 (a)(2)(A) and Sec. 402(3)(A), PLEWSA Sec.101(h)(i);
- Transparency measures and oversight of surveillance conducted under the authority of Executive Order 12333 (GSRA Sec. 312/Title IV, and PLEWSA Sec. 206(ii)(b)).
Limitations and Lingering Issues
1.) The language defining a “query” and the warrant requirement in PLEWSA should be adopted in a final mark-up bill over the compromise warrant language in the GSRA and SAFE Act.
PLEWSA’s language covers queries for both content and metadata by foregoing the “content v. non-content” distinction in other reform proposals. Instead, PLEWSA defines a “covered query” broadly to encompass any retrieval of U.S. person “information,” a broader and more protective term. Section 101 of PLEWSA also prohibits the use of metadata obtained in a query from being used as the basis for a warrant to query the content of a U.S. person’s communications. This provision addresses the “20 Questions” problem RT4 has described previously.
2.) Title II of PLEWSA and Title IV of the GSRA address the Data-Broker Loophole, albeit with limitations.
Both would address the problem and protect Americans’ from this kind of surveillance. Title II of the GSRA contains the text of a revised version of the Fourth Amendment Is Not For Sale Act, which now prohibits data purchases by federal law enforcement agencies rather than “government entities.” Section 404 of the GSRA applies strictly to intelligence community acquisition of datasets containing U.S. person data, which would include some, but likely not all, commercially available information, but not to intelligence agency querying of such databases. Section 402 requires a warrant for queries of communications content or other Fourth Amendment-protected information obtained outside of FISA (402(3)(B)) if “the compelled disclosure of which would require a probable cause warrant if sought for law enforcement purposes inside the United States” (402 (1)(B)). However, there are no restrictions in the language that would prevent warrantless U.S. person queries for other types of purchased data, including communications metadata and internet search records. Similarly, Section 202 of PLEWSA is restricted to “federal law enforcement or an element of the intelligence community.”
3.) Both bills attempt to rein in AI integration with 702 data, but we need a more thorough approach.
PLEWSA’s revised query definition and the GSRA’s “covered query” definition (Sec. 402 (3)(A)), both include information retrieved by both “manual or automated” means, and thereby attempt to address the challenge of defining regulations so as to include AI exploitation of Section 702 data and other classified records.
Conclusion
Both PLEWSA and the GSRA are strong bipartisan reform packages that could make for an even better hybrid House Judiciary bill, that could then be brought to the floor. What’s more, these reforms are popular across voters of both parties, with around 75% of the American people opposing a clean reauthorization of surveillance powers.
The reforms go a long way to address the current violations of Americans’ Fourth Amendment rights. It is crucial that Congress pass statutory limitations and restrictions on AI integration into classified national security databases. A private contract between DoD and OpenAI will not suffice when it comes to preventing mass domestic surveillance. Flawed AI outputs, based on trash inputs from data broker or the massive suspicionless surveillance conducted by NSA, should not form the basis of a warrant, nor be the sole justification for a national security investigation. The expansive definition of “terrorism” used by FBI and other agencies compounds the problem, increasing the risk that people peacefully dissenting from government policies may face terrorism charges. We urge lawmakers to include provisions or an amendment to a FISA reauthorization bill that addresses this issue.
