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Durbin Announces Bipartisan Legislation to Reform FISA Section 702 on the Senate Floor

Bipartisan legislation with Sen. Mike Lee would protect Americans from foreign threats and from warrantless government surveillance

WASHINGTON – With the April 19 sunset of Section 702 of the Foreign Intelligence Surveillance Act (FISA) approaching in just a few weeks, U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today announced new, bipartisan compromise legislation that protects Americans from foreign threats and from warrantless government surveillance in a speech on the Senate floor.  The Security and Freedom Enhancement (SAFE) Act reflects a carefully crafted, pragmatic approach that protects national security by reauthorizing Section 702 of FISA and protects Americans’ privacy and civil liberties by enacting meaningful safeguards against warrantless surveillance and government abuses.  Durbin is introducing the bipartisan legislation with U.S. Senator Mike Lee (R-UT).

“In just a few weeks, an important but controversial surveillance authority known as Section 702 of the Foreign Intelligence Surveillance Act will expire.  This extraordinary authority was initially presented to Congress as a temporary emergency counterterrorism tool more than 15 years ago.  As is often the case with temporary emergency authorities, Section 702 is now used for a wide range of foreign intelligence purposes—from countering Russia to stopping the flow of fentanyl into the United States,” Durbin said.

Durbin continued, “I have had demonstrations of this Section 702 authority, and there is no doubt in my mind that it is a valuable tool for collecting foreign intelligence.  But this authority raises serious constitutional concerns as it allows access not just to communications by those who are foreigners, but also to the vast databases of American’s communications without the customary search warrant required by the United States Constitution… the FBI has imposed new limits on the authority of FBI agents to search the communications of Americans, but even after implementing these reforms, the FBI still conducted over 200,000 warrantless searches of Americans in just one year—more than 500 searches of Americans per day.”

Durbin went on to explain that as Chair of the Senate Judiciary Committee, which has primary jurisdiction over FISA, he has evaluated proposed reforms and carefully considered the administration’s views.  He has also heard from colleagues on both sides of the aisle. 

“Existing legislative proposals of the House and Senate go too far for some and not far enough for others,” Durbin said.  “That’s why today I’m introducing what I hope will be a compromise bill that tries to bridge this divide to protect both our security and our constitutionally guaranteed freedoms.  The Security and Freedom Enhancement Act, or SAFE Act, would enhance our national security by reauthorizing Section 702 for four more years while also protecting Americans from warrantless surveillance.”

Durbin concluded, “The SAFE Act, which I’m introducing, is a sensible, moderate compromise between more robust reform proposals that address a wide range of surveillance concerns and bills that reauthorize Section 702 without adequately addressing these concerns. I know that compromise does not come easy when it comes to this policy, but a reasonable middle ground that protects our national security and the rights of the American people is possible.  The SAFE Act is my offer and compromise to achieve that goal.  With the April 19 sunset of Section 702 fast approaching, I urge my colleagues on both sides of the aisle to join me in supporting this compromise for the good of the American people.”

Video of Durbin’s remarks on the Senate floor is available here.

Audio of Durbin’s remarks on the Senate floor is available here.

Footage of Durbin’s remarks on the Senate floor is available here for TV Stations.

To ensure that FISA Section 702 and other surveillance authorities are used for appropriate purposes and in a manner that respects Americans’ privacy and civil liberties, the SAFE Act includes the following key safeguards and reforms:

  • Requires intelligence agencies to obtain a FISA Title I order or a warrant before accessing the contents of Americans’ communications collected under Section 702—but not before running queries.  This narrow warrant requirement is carefully crafted to ensure that it is feasible to implement and sufficiently flexible to accommodate legitimate security needs.
    • The bill will not require a warrant for searches of foreigners’ communications or searches to uncover connections between targeted foreigners and Americans.
    • Requiring a warrant only for accessing content in cases where a U.S. person search has returned results would dramatically reduce the number of cases in which the government must seek a warrant.  According to government reports, less than two percent of U.S. person queries of Section 702 data actually return results.
    • The requirement contains robust exceptions for exigent circumstances, consent by the subject of the search, and cybersecurity-related searches.
    • The Privacy and Civil Liberties Oversight Board, an independent board within the executive branch, conducted an extensive review of Section 702 and found that the government provided “little justification for the relative value” of warrantless searches of Americans’ communications.  In the handful of examples where such searches were useful, the Board Chair noted that the government could have obtained a warrant, received consent for the search, or invoked the exigent circumstances exception.
  • Closes the “data broker loophole” that intelligence and law enforcement agencies use to buy their way around the Fourth Amendment and statutory privacy protections by purchasing Americans’ sensitive information, including location history, from commercial data brokers.
    • This provision strikes a compromise by allowing the government to purchase data sets that may include Americans’ information if that information cannot be identified and excluded before purchase.  In such cases, the government would be required to apply strict minimization procedures to limit the retention and use of Americans’ data.
    • Currently intelligence agencies are left to craft their own rules for purchasing sensitive information without accounting for what information they buy and how they use it.
    • Examples of such purchases include the Department of Defense purchasing location data collected from prayer apps to monitor Muslim communities to police departments purchasing information to track racial justice protesters.
  • Bolsters the role of amici curiae who assist the FISA Court in evaluating arguments presented by the Department of Justice by creating a presumption that amici should participate in certain particularly sensitive or important matters and by increasing amici’s access to information.
    • This provision mirrors an amendment that the Senate passed by a vote of 77-19 in 2020.
  • Adopts provisions requiring additional layers of internal supervision of U.S. person queries and other measures to increase accountability, compliance, and oversight.