We disagree on many issues. One of us is a longtime Democrat, the other a conservative Republican. But both of us are deeply concerned about warrantless government surveillance of the American people.
In 2008, Congress enacted Section 702 of the Foreign Intelligence Surveillance Act to allow the government to gather vital intelligence about foreign governments, terrorists and spies. The problem is that it has also allowed agencies like the F.B.I. and the National Security Agency to regularly gather and search through the private communications of American citizens without a warrant. That is a clear violation of rights protected by the Constitution.
It’s true that Section 702 doesn’t allow the direct targeting of Americans, but their communications are still often gathered during the warrantless surveillance of foreigners abroad. Once the government has this data, agencies then have the ability to search through it. And they do: Transparency reports reveal that thousands of such searches are performed every year. A federal court previously found that some the F.B.I. had conducted had violated the Fourth Amendment.
Predictably, without a requirement for court approval of these searches, abuses have been rampant. As a recent report from the Brennan Center for Justice highlighted, F.B.I. agents in recent years have searched for the communications of “protesters across the political spectrum; members of Congress; a congressional chief of staff; a state court judge; multiple U.S. government officials, journalists and political commentators; and 19,000 donors to a political campaign.” In a time of extreme partisanship, these abuses have provoked bipartisan outrage, recently leading the House to delay a vote on reauthorization until this week.
For too long, Congress has habitually reauthorized Section 702 without significant reforms. As in past years, some may reprise the perennial excuse that there is no time to debate the needed changes before the authority expires on April 20. They’re wrong. If it were to expire, the law permits existing surveillance to continue under an annual certification by the Foreign Intelligence Surveillance Court until at least March 2027.
Congress should not needlessly rush to extend this authority without the American people and their elected representatives knowing the full truth about the extent of ongoing abuses and compliance failures. Government officials have failed to testify before Congress about their use of this authority since it was last reauthorized. And in the recent ruling on the annual certification, the court reportedly found problems — but the details of those concerns remain classified.
Congress should have a serious and informed debate on these issues rather than ramming through a reauthorization of Section 702 with minimal reforms yet again, sidelining Americans’ constitutional rights in the process.
That’s why the two of us have proposed the Security and Freedom Enhancement (SAFE) Act, a compromise that would reauthorize the valuable core of this tool while enacting reasonable safeguards to protect the Fourth Amendment rights of all Americans.
The government would still be able to check its databases to uncover connections between targeted foreigners and Americans. But it would have to get court approval in the small number of cases in which these searches have generated results and the government has a proper basis for gaining access to the contents of the communications. Importantly, our warrant requirement also contains robust exceptions for legitimate emergencies, so that we can balance civil liberties with legitimate security needs.
Our bill would also cut off another form of warrantless surveillance: the widespread practice of circumventing the Fourth Amendment by purchasing Americans’ sensitive information from data brokers.
The Department of Justice (including the Drug Enforcement Administration and the F.B.I.), the Department of Homeland Security (including ICE, Customs and Border Patrol and the Secret Service) and the Defense Intelligence Agency have purchased cellphone location information for millions of Americans. Such information is highly sensitive and can reveal intimate details of that person’s life. Even more troubling, artificial intelligence could supercharge such surveillance, allowing the government to harvest and analyze mass quantities of highly personal and sensitive information about Americans without court approval. Our legislation would close these loopholes — again with pragmatic exceptions to accommodate legitimate safety and security needs.
Congress should not take an all-or-nothing approach to reauthorizing Section 702. We have the time and the responsibility to get this right. Members may disagree about what reforms are required — that’s why we have debates and amendments. But simply extending the law without any changes to protect Americans’ privacy should be off the table.
We owe it to the American people to meet this moment and do our jobs to protect both national security and civil liberties. Our bill offers a bipartisan solution to do just that.
Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, are senators.
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