House Judiciary set to unveil new spy powers bill with broad warrant requirement

The House Judiciary Committee is set to unveil its bid to revise a controversial surveillance program that’s set to expire in just a few weeks.

The new legislation would require a warrant to search for any American’s information under Section 702, according to draft text obtained by POLITICO, which is meant to target foreigners abroad but in the process sweeps in citizens’ communications. The current program does not require a warrant when that occurs.

The Judiciary Committee is expected to vote on that bill Wednesday, which hasn’t been publicly released but is expected to earn bipartisan support.

Congress has until the end of the year to reauthorize Section 702. Congressional leaders have attached a short-term extension until Feb. 2 to a sweeping defense policy bill, three people familiar with the decision told POLITICO, though they cautioned that until text is finalized House GOP opposition to linking the two could mean it gets stripped out.

When to require a warrant for Americans’ information has long been the biggest sticking point in the larger reauthorization debate. And those negotiations have churned behind the scenes for months, even as Congress was mired in government funding and speaker fights.

The Judiciary bill would require a warrant for U.S person searches under the surveillance authority. But the warrant requirement has exceptions built in, including for “emergency situations,” if an individual has consented to the search or some cybersecurity-related searches.

“The idea … is to protect Americans’ rights under the Fourth Amendment and under the Constitution,” Rep. Andy Biggs (R-Ariz.) said late last week about the forthcoming legislation, which he helped spearhead.

The bill’s warrant requirement is significantly broader than a forthcoming bill from the Intelligence Committee, which is expected to only require a warrant in the case of “evidence of a crime” searches, which are not related to foreign intelligence and make up only a small slice of searches.

The intelligence community, and its allies on Capitol Hill, have warned that a broader warrant requirement like the one in the Judiciary bill would make the surveillance authority unworkable and undermine a critical national security resource.

“That’s entirely unworkable. That would be the equivalent of every time a police officer pulls you over in order to run your license plate, they’ve got to get a warrant,” said Rep. Brian Fitzpatrick (R-Pa.).

Republicans on the Judiciary and Intelligence Committees negotiated behind the scenes for months to try to reach an agreement on how to move forward on changes to Section 702. And while they were able to reach broad areas of agreement — including on new penalties for surveillance violations, reporting and auditing requirements and changes to the broader surveillance law — they remain at odds over warrant requirements.

Additionally, the Judiciary bill limits how many FBI personnel can search 702-collected data, would implement new penalties for violations under the Foreign Intelligence Surveillance Act (FISA) and makes changes to the secretive surveillance court. Many of those proposals are expected to also be included in the Intelligence Committee’s forthcoming bill.

The Judiciary panel’s bill also includes a bipartisan proposal to prevent data brokers from selling consumer information to law enforcement. Separate legislation on that piece already advanced through the panel on its own, but privacy advocates have been pushing to attach it to 702 reauthorization.

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