The House Permanent Select Committee on Intelligence released its report on FISA 702 reauthorization, and it laid out the necessary reforms for the reauthorization of the program that is set to expire in just over one month.
Led by Intelligence Committee Chairman Mike Turner (R-OH), the FISA working group put together by former Speaker Kevin McCarthy (R-CA) released a detailed report on what must happen with Section 702 of the Foreign Intelligence Surveillance Act to ensure that it doesn’t expire at the end of the year but also what reforms it wants to ensure the program is no longer abused.
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The 702 portion of the FISA law relates to what the Office of the Director of National Intelligence describes as “a key provision” of FISA “that permits the government to conduct targeted surveillance of foreign persons located outside the United States.”
But, over the years, it has been abused. According to a declassified FISA court opinion this year, the FBI committed FISA violations 278,000 times in recent years, including on people believed to be connected to violent George Floyd protests and the Capitol riot.
Another recently declassified intelligence document concluded that “misunderstandings regarding FBI’s systems and FBI’s querying procedures caused a large number of query errors” related to 702.
“Our report outlines reforms necessary for FISA’s reauthorization. The United States is currently at its greatest risk of a terrorist attack in nearly a decade. We cannot afford to let this critical national security tool expire. I look forward to working with my colleagues on this critical issue before the end of the year,” Turner said.
In total, the report laid out 45 reform proposals for FISA 702.
The reforms include provisions to stop FBI query abuse, including restricting the number of FBI personnel who can authorize a query of a U.S. person by more than 90%, creating criminal liability for 702 leaks, requiring the FBI to get a warrant to conduct queries and prohibiting queries that could suppress political opinions and religious beliefs.
The group wants to tighten the querying procedures for the FBI to include the following:
- Requiring FBI personnel to complete training prior to conducting queries of information acquired under Section 702
- Requiring approval from an FBI attorney prior to conducting any single query containing more than one search term
- Requiring prior approval for queries related to sensitive investigative matters, including FBI deputy director approval for query terms related to political or press-affiliated persons and FBI attorney approval for query terms related to religious persons
- Requiring FBI personnel to provide written and recorded justifications for individual queries prior to conducting them
- Mandating that FBI systems maintain a function that requires the user to record their intention to query information acquired under Section 702
It also includes provisions to prevent another abuse similar to what happened to Carter Page, who was a campaign aide to then-candidate Donald Trump in 2016 who was spied on using FISA 702. This would include creating enhanced criminal penalties for those who leak FISA applications or lie to the FISA court.
It recommends enhancing the penalty to imprisonment for not more than eight years for knowingly making any false material declaration to the U.S. Foreign Intelligence Surveillance Court or the United States Foreign Intelligence Surveillance Court of Review. Additionally, it proposes increasing the maximum penalty from five to eight years for a person who “unlawfully intentionally engages in or discloses information obtained through electronic surveillance not authorized by law.”
Section 702 of FISA is set to expire come Dec. 31, and while there is bipartisan agreement that reforms must be made to FISA, there is still no agreement between Republicans and Democrats as to what reforms they will make.
“If Congress fails to act, Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire. Section 702 of FISA is one of the most effective tools used by the Intelligence Community to protect our nation,” the Intelligence Committee’s report reads. “If it sunsets, so too will our ability to identify, prevent, and mitigate threats to our democracy. We will go ‘blind’ to many critical national security risks that threaten our homeland and our military interests abroad.”
The report continues: “Although the reauthorization of Section 702 is imperative for protecting our national security, recent disturbing abuses of Section 702 and other provisions of FISA impacting U.S. persons require a complete review of Section 702 authorities and the enactment of meaningful reforms.”
With Speaker Mike Johnson (R-LA) choosing to leave out a short-term FISA extension in the continuing resolution, it’s now a race against the clock to ensure it doesn’t lapse.
“I certainly made this a concern that I expressed to Speaker Johnson personally over my personal concerns about the design of the continuing resolution. In my view, the CR to Jan. 19 and Feb. 2 should have contained the continuation of 702 authority while those reforms were being completed and socialized on both sides of the Hill and prepared for passage,” Rep. French Hill (R-AR), a member of the Intelligence Committee, said. “So, that was my preference. The speaker essentially has given me his word that 702 will not expire.”
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Rep. Patrick McHenry (R-NC) said that not extending FISA 702 authorities in the continuing resolution is “dumb and dangerous” and that it’s “not in our national interest.”
“There are reforms that we’re going to negotiate for, but we should not go dark in the hopes of getting reforms to that important program, especially not when our most sacred ally in the world got hit with the worst terrorist attack, far worse on a percentage basis to their population than what 9/11 did to us as Americans,” McHenry said of the Oct. 7 Hamas attack on Israel.
Read the full report here:
