The Latest Push to Extend Key US Spy Powers Is Still a Mess

A senior Democratic aide familiar with the negotiations called the article a “legislative scam,” telling WIRED: “Many members don’t quite understand the ins and outs of this law. Inserting the phrase ‘Fourth Amendment requirement’ into the bill is the president and the intelligence community working to dupe them into supporting a bill that has no meaningful constitutional guarantees.”

Section 5 directs the U.S. Attorney General to revoke existing rules on congressional access to the secret court that oversees the 702 program and issue new rules within 60 days. The provision is not automatically enforceable: the access it promises is as broad as the attorney general chooses to grant it.

Clause 6 is the only provision in the bill that has potential consequences. This runs counter to provisions in current law that allow an FBI supervisor, or any employee of equivalent rank, to approve a 702 database query using an American’s identifier, leaving the decision to an attorney. However, the same lawyers are part of the category of career employees that the administration reclassified at will last month.

Finally, Section 7 directs the Government Accountability Office to audit the program’s targeting procedures within one year and report to the House and Senate Intelligence and Judiciary Committees. The audit is without obligation. Producing anything of value depends on whether the intelligence community gives the GAO real access to the technical mechanisms it is supposed to examine.

Democratic support for the bill is led by Rep. Jim Himes, the Connecticut Democrat who is the ranking member of the House Intelligence Committee. Himes, a member of the Gang of Eight briefed on the bureau’s most sensitive operations, justified his position largely by asserting that he was personally unaware of any abuse of the program under the current administration — an appeal to ignorance that sits uneasily with his simultaneous reliance on compliance figures produced by an FBI surveillance bureau that Patel closed 11 months ago.

The pressure on Himes within his district is increasing. On Thursday, a coalition of Connecticut organizations called on him to step down as a ranking member, accusing him of “helping Donald Trump maintain warrantless surveillance” and “falsely and repeatedly asserting that intelligence agencies do not purchase information from data brokers on people in the United States.”

Himes did not immediately respond to a request for comment. In a previous statement, he told WIRED that he had seen “no evidence of abuse” of the 702 program under the Trump administration, called Section 702 “the nation’s largest and most rigorously monitored foreign intelligence collection tool,” and said he would only urge members to reauthorize the program if he had seen no suggestion that the administration was using Section 702 for “unlawful purposes or inappropriate.”

“The latest House FISA bill is an automatic authorization for Trump and Kash Patel to spy on Americans without a warrant,” Sen. Ron Wyden, who serves on the Senate Intelligence Committee, said in a statement. “Don’t fall for false reforms. Tell anyone who will listen that Americans need to end warrantless surveillance. Instead of ending warrantless surveillance or creating more transparency about government spying, this bill only 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, now a fellow with the nonpartisan Privacy and Oversight Accountability Project, told WIRED that the bill’s signature provision to sway members over closure only reiterates conduct “already prohibited by law” and creates no real obstacle for FBI agents intent on snooping through Americans’ private communications.

“It’s a disappointment,” Goodlatte says. “But I’m heartened by the fact that 228 House members voted last week to oppose outright reauthorization of a similar proposal. Sixty percent of Republicans voted in favor of a term requirement two years ago. It’s far from over.”