Durbin, Lee Introduce Bipartisan SAFE Act to Reform FISA Section 702

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, and U.S. Senator Mike Lee (R-UT) today introduced the bipartisan Security and Freedom Enhancement (SAFE) Act, a compromise bill that protects Americans from foreign threats and from warrantless government surveillance.  This legislation 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.

Along with Durbin and Lee, the SAFE Act is cosponsored by Senators Mazie Hirono (D-HI), Steve Daines (R-MT), Ron Wyden (D-OR), Cynthia Lummis (R-WY), Tammy Baldwin (D-WI), Martin Heinrich (D-NM), Elizabeth Warren (D-MA), Ed Markey (D-MA), Bernie Sanders (I-VT), Jon Tester (D-MT), and Peter Welch (D-VT).

“There is little doubt that Section 702 is a valuable national security tool.  However, while only foreigners overseas may be targeted, the program sweeps in massive amounts of Americans’ communications, which may be searched without a warrant.  Even after implementing compliance measures, the FBI still conducted more than 200,000 warrantless searches of Americans’ communications in just one year—more than 500 warrantless searches per day,” said Durbin.   “Our bipartisan legislation—the SAFE Act—is a sensible, bipartisan path forward on reauthorizing Section 702 with meaningful reforms.”

“The documented abuses under FISA should provoke outrage from anyone who values the Fourth Amendment Rights of American citizens,” said Lee.  “From warrantless searches targeting journalists, political commentators, and campaign donors to monitoring sitting members of Congress, these actions reveal a blatant disregard for individual liberties. Upholding the Fourth Amendment isn’t optional—it’s a duty.  Our proposed reforms to FISA Section 702 are common sense and imperative to restoring trust in our government’s commitment to upholding Americans’ rights under the Constitution.”

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.

A short summary of the bill is available here.

A section-by-section summary of the bill is available here.

Full text of the bill is available here.

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