Recent efforts to expand major US spying powers remain a mess

A senior Democratic aide familiar with the negotiations referred to the section as a “legislative scam,” telling WIRED: “There are many members who do not fully understand the ins and outs of this bill. By throwing the phrase ‘Fourth Amendment requirement’ into the bill, the speaker and the intelligence community are tricking them into supporting a bill that does not contain meaningful constitutional safeguards.”

Section 5 directs the U.S. Attorney General to rescind existing rules on congressional access to the secret court overseeing the 702 program and issue new rules within 60 days. This provision is not self-enforceable: the access it promises is only as broad as the prosecutor chooses.

Article 6 is the only article in the bill that includes any potential bite. It flies in the face of language in current law that allows an FBI supervisor, or any employee of similar rank, to approve a 702 database query using a U.S. ID, leaving the decision up to an attorney. However, the same lawyers sit within the category of professional employees that the administration reclassified as at-will last month.

Finally, Section 7 orders the Government Accountability Office to review the program’s targeting procedures within a year and report to the House and Senate Intelligence and Judiciary Committees. Auditing is not binding. Whether it will produce anything of value depends on whether the intelligence community gives GAO real access to the technical mechanisms it is supposed to examine.

Democratic support for the bill is under pressure from Representative Jim Himes, a Connecticut Democrat who serves as the ranking member on the House Intelligence Committee. Himes, a Gang of Eight member familiar with the bureau’s most sensitive operations, has justified his position largely by saying that he personally is unaware of any misuse of the program under the current administration — an appeal to ignorance that does not fit easily with his simultaneous reliance on compliance figures from the FBI’s oversight office that Patel shut down 11 months ago.

Pressure is mounting on Himes from within his own region. On Thursday, a coalition of organizations in Connecticut called on him to step down as a ranking member, accusing him of “helping Donald Trump maintain warrantless surveillance” and “falsely and repeatedly claiming that intelligence agencies do not purchase data broker information about people in the United States.”

Hymes did not immediately respond to a request for comment. In an earlier statement, he told WIRED he had seen no evidence of abuse of the 702 program under the Trump administration, who called Section 702 “the nation’s most important and toughest foreign intelligence collection tool,” and said he would only urge members to reauthorize the program if he saw no indication that the administration was using Section 702 “for illegal or improper purposes.”

“The House’s recent FISA bill is a rubber stamp for Trump and Kash Patel to spy on Americans without a warrant,” Sen. Ron Wyden, a member of the Senate Intelligence Committee, said in a statement. “Don’t fall for phony reforms. Tell anyone who will listen, Americans need to stop warrantless surveillance. Instead of ending warrantless surveillance or creating more transparency around government spying, this bill only requires a few Trump administration officials to check a box. That invariably leads to more abuses, not less.”

Bob Goodlatte, a former Republican House Judiciary Chairman who now works at the nonpartisan Project on Surveillance Privacy and Accountability, tells WIRED that the bill’s landmark provision aimed at swaying members on the fence only rehashes behavior “already prohibited by law” and creates no real impediment to FBI agents determined to search Americans’ private communications.

“This is a disappointment,” Goodlatte says. “But I’m encouraged by the fact that 228 House members voted last week to oppose a clean reauthorization of a similar proposal. Two years ago, 60% of Republicans voted in favor of the warrant requirement. And this is not over yet.”