GoKawiilLeaders in the United States House of Representatives on Thursday released the text of a negotiated bill to reauthorize a US surveillance program that enables federal agents to read the communications of Americans without a warrant. The agreement—while appearing to contain a slew of new oversight provisions—leaves untouched the kind of warrantless search of Americans' communications that a federal court ruled unconstitutional last year.
The bill aims to extend the embattled program—Section 702 of the Foreign Intelligence Surveillance Act (FISA)—for an additional three years and is the product of a deal cut with House Republican leadership after House speaker Mike Johnson failed to secure a clean 18-month extension last week.
The 702 program has become increasingly controversial due to revelations that federal agents have used it to spy on racial justice protesters, political donors, journalists, and sitting members of Congress. Oversight mechanisms credited with curbing the FBI's prior abuses have also been dismantled under the current administration, even as the bureau has raided the homes of journalists and the FBI director has publicly threatened to investigate the president's perceived enemies.
On Wednesday, The New York Times reported that FBI agents had, in March, combed federal databases for material on Times reporter Elizabeth Williamson after her February article on the FBI director’s girlfriend. The agents recommended opening a preliminary investigation of Williamson on a stalking theory. The bureau has not said which databases were searched or whether any Section 702 material was among them.
Following a Republican mutiny that sank the White House's push for a clean reauthorization last Friday, House leaders returned this week with a new bill that contains several provisions that, at first blush, appear to constrain the FBI’s ability to access the 702 database. However, the reforms are largely cosmetic, re-creating oversight functions that the administration has already dismantled elsewhere and leaving the FBI's core authority to search Americans’ communications without a warrant untouched.
Section 2 of the bill, for instance, would require the FBI, each month, to send lawyers at the Office of the Director of National Intelligence a written justification for every query it ran against 702 data using an American's identifier. The function is close to one the FBI performed on itself until last May, when director Kash Patel shuttered the bureau's Office of Internal Auditing (OIA). Crucially, the ODNI office picking up the work has a fraction of OIA's staff, no subpoena power, and no authority to suppress a query or any data it returned.
The lawyers doing the reviewing are also among the career federal employees the White House reclassified as “at-will” in March, stripping their civil service protections—meaning an attorney who flags an improper query can now be summarily fired for doing so.
Section 3 of the bill threatens FBI employees with up to five years in prison for “knowingly and willfully” violating the bureau's querying rules or falsifying compliance. That standard—one of the toughest intent requirements in criminal law—is historically a graveyard for prosecutions and relies on the Justice Department’s appetite for prosecuting its own. Notably, none of the FBI's documented past abuses would appear to meet that standard. The bureau's explanations for querying the communications of activists and members of Congress have consistently relied on claims of inadequate training or unintentional error.
Section 4—titled “Fourth Amendment Requirement for Targeting United States Persons”—bars conduct that is already illegal. The provision is a fig leaf. It lets lawmakers on the fence appear to vote for a constitutional safeguard, or, for those who read no further than the heading, believe that they have.