A senior Democratic aide familiar with the negotiations called the section a “legal sham,” telling WIRED: “There are a lot of members who don’t really understand the ins and outs of this legislation. Throwing the words ‘Fourth Amendment requirement’ into the bill is the speaker and the intelligence community working to trick them into supporting a meaningful bill that has no constitutional basis.”
Section 5 directs the US attorney general to repeal existing laws on congressional access to the secret court governing the 702 program and issue new ones within 60 days. The provision is not self-executing: The access it promises is only as broad as the attorney general chooses to make it.
Clause 6 is the only clause in the bill that is likely to be bitten. It conflicts with language in current law that allows the FBI director, or any employee of equal rank, to authorize a 702 database request using a US ID, leaving the discretion up to counsel. Those same lawyers, however, sit within the category of labor workers that the administration reclassified last month.
Finally, Section 7 mandates the Government Accountability Office to review the program’s targeting practices within one year and report to the House and Senate intelligence committees and the courts. Inspections are non-binding. Whether it produces anything of value depends on whether the intelligence community gives the GAO actual access to the technical systems it is meant to investigate.
Democratic support for the bill is being spearheaded by Representative Jim Himes, a Connecticut Democrat who serves as the ranking member of the House Intelligence Committee. Himes, a member of the Gang of Eight briefed on the bureau’s most sensitive operations, has served to justify his position largely by saying he personally knows of no abuse of the program under the current administration–an appeal to ignorance that sits uneasily with his simultaneous reliance on compliance numbers provided by the FBI watchdog office that Patel shut down 11 months ago.
Pressure on Himes from within his district is mounting. On Thursday, a coalition of Connecticut organizations he asked him to resign as a ranking memberaccusing him of “helping Donald Trump secure surveillance without a warrant” and “intelligence agencies who make false claims and routinely don’t buy the agency’s information on people’s data in the United States.”
Himes did not immediately respond to a request for comment. In an earlier statement, he told WIRED that he had seen “zero evidence of abuse” of the 702 program under the Trump administration, calling Section 702 “the most important and most tightly controlled tool for foreign intelligence collection,” and said he would only encourage members to approve the program if he saw no suggestion that the administration was using it for “violation of Section 70.”
“The latest House FISA bill is Trump and Kash Patel’s seal of approval to spy on Americans without a warrant,” Sen. Ron Wyden, who sits on the Senate intelligence committee, said in a statement. “Don’t accept fake reform. Tell anyone who will listen, Americans need an end to warrantless surveillance. Instead of ending warrantless surveillance or establishing more transparency about government spying, this bill just requires a few more Trump administration officials to check a box. That always leads to more abuse, not less.”
Former Republican House Judiciary Chairman Bob Goodlatte, who now runs the nonpartisan Privacy and Surveillance Accountability Project, tells WIRED that the bill’s fence-sucking provision only reinforces “prohibited” behavior and does nothing to deter FBI agents who are 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 against a clean bill of passage. 60 percent of Republicans voted two years ago for the warrant requirement. This is far from over.”
