Restore The Fourth activists have been deeply involved for a decade in the fight to reform the government’s warrantless surveillance of Americans, which Congress retroactively legalized in Section 702 of the FISA Amendments Act of 2008. Now, Senators Durbin and Lee are introducing a bill, the “SAFE Act”, that may represent a viable compromise for Congress to adopt before the law is due to expire on April 19, 2024.
Here’s the nature of the problem. Section 702 permits NSA to collect millions of Americans’ communications “for foreign intelligence purposes,” on the basis that those Americans are communicating with any of over 200,000 foreign “targets.” Surveillance hawks routinely characterize these targets as terrorists and “bad guys,” and use this structure to note that “Section 702 surveillance doesn’t target Americans.” In fact, targets can be anybody who possesses “foreign intelligence information”; they need not have done anything wrong. Not targeting Americans also doesn’t mean in any way that the agencies can’t see their communications. Current law allows the FBI to routinely “query” that already-acquired database for domestic law enforcement purposes. In this way, Section 702 allows the FBI to surveil Americans’ communications without a warrant, blowing a massive hole in the Fourth Amendment. Civil liberties folks call this the “backdoor search loophole.”
At the same time, an array of agencies, including both the intelligence community and state and local law enforcement, have taken advantage of the U. S.’s lack of a strong federal privacy law, to acquire via purchase vast arrays of data on U. S. persons that, if acquired directly, would indisputably require a warrant, leading to the harassment and surveillance of anyone those agencies take issue with. Again, this is a massive and ongoing violation of the Fourth Amendment; civil liberties folks call this the “data broker loophole.“
The result has been a firestorm of abuses. The FBI has used this power to spy on protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and even members of Congress. The FBI, according to the Foreign Intelligence Surveillance Court, has used this warrantless surveillance power over four million times in the last three years. Then, the Department of Justice, in an unknown but probably large number of cases, uses information derived from these queries to prosecute Americans, while hiding how they found the information, so as to deny defendants the ability to challenge the constitutionality of the surveillance in court (an abuse called “parallel construction.”) Meanwhile, DHS, including ICE and CBP, the FBI, Department of Defense, U.S. Navy, Coast Guard, the Defense Intelligence Agency, the IRS, DEA and most recently the NSA, have all taken advantage of the data broker loophole to purchase masses of Americans’ data without a warrant.
Progressive lawmakers including Reps. Lofgren, Nadler and Jayapal and Senator Wyden, have long been concerned about the FBI’s inter-generational grudge match with any of the many people to the left of the Democratic National Committee, including advocates for the environment, immigrants, Muslims, people of color, workers and the poor. Republican lawmakers including Reps. Biggs, Jordan and Davidson and Senator Lee, have leveraged President Trump’s personal rage at the FBI into a broader opposition to FBI overreach regarding people disputing the 2020 election, people opposed to COVID restrictions, and Christians. Restore The Fourth helped launch two bills during fall and winter 2023, with broad bipartisan and bicameral support – the Government Surveillance Reform Act (GSRA), and the narrower Protect Liberty and End Warrantless Surveillance Act (PLEWSA). Both of these bills included the two key reforms described above. The latter passed out of the committee of jurisdiction in the House on a bipartisan vote of 35-2 in December.
This set in motion a bizarre series of shenanigans from Congress’s Intelligence Committees, which have long been stacked high with the intelligence community’s preferred lawmakers. They introduced their own fake “reform bills“, with fake “warrant requirements” that would cover scarcely any queries; inserted a four-month extension of Section 702 into the must-pass NDAA from December 2023 to April 2024, allowing the Biden administration to ask the FISC for permission to keep operating these programs for a full year from now; hyped up old intelligence about “Russian space nukes” as an imminent security threat; and argued to their colleagues that, insofar as Section 702 permitted the agencies to surveil American protesters, that was good, actually. Then they blew up a tentative deal to bring a bill to the floor that both sides, Judiciary and Intelligence, would be permitted to offer their amendments on. That’s right – even the prospect that House members might be permitted to vote at all on whether they would like to close these loopholes, was intolerable. And for some reason, Speaker Johnson, whose prior voting record generally supports surveillance reforms, has not been willing to shut down this circus by bringing PLEWSA to the floor.
Into this stalemate, then, step Senator Durbin (D-IL) and Senator Lee (R-UT); Durbin chairs the Senate Judiciary Committee. They have put together a bill, the “Security and Freedom Enhancement Act”, or “SAFE Act”, that seeks to preserve Americans’ civil liberties, while providing compromise language on the backdoor search loophole. Our information is that it’s endorsed by several prominent reformers in the Senate, including Senators Wyden, Heinrich, Baldwin, and Markey.
So what’s the compromise? Essentially, unlike in GSRA and PLEWSA, the FBI would not have to get a warrant for every U. S. person query by default. Without a warrant, the FBI would be able to query the 702 database to find out whether there was a hit on a given search string associated with a U. S. person. Then, if there was a hit, they would then have to obtain a warrant in order to access content. Based on last year’s figures, this would reduce the number of warrants they had to obtain from over 200,000 to around 3,250, without reducing the overall number of non-U. S. persons targeted (fairly or unfairly) by Section 702. 3,250 warrants would be a more manageable burden for the FISC than 200,000.
Currently, and under all proposals before Congress, the FBI would be able to look at the metadata of all communications in the database without a warrant. We don’t like that – metadata is still data, and is still immensely revealing – but that policy environment means that the SAFE Act’s limiting of a warrant requirement to before access to content might not on net be significantly more invasive to Americans than having it be required before determining whether there is a hit. However, we are reserving final judgement on the adequacy of the warrant requirement in the bill, until we have a chance to review publicly released bill text.
The rest of the SAFE Act also contains reforms that are important and that we have long supported. It would still close the data broker loophole. It would institute important reforms at the FISC that have previously garnered 77 votes in the Senate. It implements transparency and reporting improvements. It strengthens penalties for misconduct by FBI agents in handling surveillance applications.
The SAFE Act has limitations, as any bill does that leaves the inherently dubious Section 702 structure in place. The warrant language in GSRA and PLEWSA is unquestionably better, and we believe that language would be more effective in forcing the government to be more judicious about its targeting under Section 702 in order to create a manageable warrant process. The SAFE Act may also explicitly criminalize leaks of applications to the FISC or classified information contained in those applications, which would hinder whistleblowers who are seeking to inform the public about a process that, being one-sided, is very susceptible to abuse. It does not contain important provisions in GSRA, which would make it easier for people harmed by surveillance to litigate, reduce the use of parallel construction, and bring much-needed transparency to surveillance of Americans under Executive Order 12,333. Civil liberties folks who support this compromise are necessarily accepting that there are many fights that would be left for another day.
However, there remains a significant risk that Congress will decide that it’s just easier to do a straight reauthorization of a year or two, and kick the can yet again down the road. Both Senator Schumer and Senator McConnell have advocated such a course of action. The SAFE Act may offer an alternative roadmap for leadership in either chamber, to pursue a compromise that preserves Section 702’s powerful foreign intelligence insights, while doing substantially less damage to U. S. persons’ Fourth Amendment interests. On balance, the SAFE Act deserves our endorsement, and increases the chances of meaningful FISA reforms.
UPDATE: The text of the SAFE Act was released today, and can be found here.