Setting the Record Straight on FISA

Dear Friend

Earlier this month, the U.S. House of Representatives passed H.R. 7888, the Reforming Intelligence and Securing America Act (RISAA). Last week, H.R. 7888 passed the U.S. Senate and was signed into law by the President.

This legislation includes 56 key reforms to the FISA law that has been in place for years and reauthorizes Section 702 of the Foreign Intelligence Surveillance Act (FISA) so that we can continue to defend our nation while also protecting the privacy of every American. While there is always room for debate and a difference of opinion, there is a lot of misinformation about this particular issue. So, as I always try to do, I am going to lay it out as best I can. After all, we all come to our conclusions based on the best information we have at the time that we have it.

What is FISA?

The Foreign Intelligence Surveillance Act was first enacted in 1978, which set parameters for the government when conducting foreign intelligence surveillance activities to protect American's privacy. The bill established judicial and congressional oversight of foreign intelligence surveillance activities while working to protect our country against national security threats.

FISA has been modified many times since then. In 2001, right after 9/11, everyone looked around and asked, “how could this have happened?” To protect against the next massive terrorist event on our homeland, the USA PATRIOT Act modified FISA by increasing information sharing between law enforcement and intelligence personnel. Then, in 2005, the USA PATRIOT Act Improvement and Reauthorization Act added additional safeguards to protect privacy interests and civil liberties.

In 2008, Congress enacted Section 702 of the Foreign Intelligence Surveillance Act. Specifically, Section 702 permits targeted intelligence collection of foreign persons only, and only if they are located outside the United States, in order to obtain information.

President Trump's national security advisors Mike Pompeo, Bill Barr, John Ratcliffe, Robert O-Brien, and former chairman of the House Intelligence Committee Devin Nunes urged Speaker Johnson to renew and reform this critical tool to help keep our homeland safe, writing "[Section 702] is one of the most critical tools the Intelligence Community has at its disposal. Section 702 must be reauthorized and, as evidenced by the FBI's prior flagrant abuses, FISA must also be reformed.” The letter also warned against implementation of a new warrant requirement, citing the unintended consequences of doing such. Click here to read the letter.

Myths vs. Facts

Congress has a responsibility to pass laws to protect Americans from terrorist threats while respecting the Constitutional rights of every U.S. citizen. Carefully addressing these goals is not an easy task. There has been a great deal of confusion and misinformation about how Congress balanced these priorities in H.R. 7888.

❌ Myth: The FISA bill allows the U.S. government to spy on any American without a warrant.

✅ Fact: The only time FISA gains access to an American citizen without a warrant is if they are actively communicating with terrorists.

Again, H.R. 7888 does not permit warrantless surveillance of American citizens unless you are actively communicating with a terrorist. Most of the debate surrounding H.R. 7888 relates to the “warrant requirement” amendment offered by Congressman Andy Biggs (R-AZ) and Congresswoman Pramila Jayapal (D-WA). The Biggs-Jayapal amendment would have required the FBI to acquire a warrant to investigate a US citizen who is communicating with a foreigner abroad — one the intelligence community has identified to have intelligence information. This requirement would cause dangerous delays and put lives in jeopardy, which is why I opposed this amendment.

To give you an example, let's suppose the U.S. identifies a Hamas email. Two people in the United States email this foreign terrorist. One says, 'How's the weather?’ within the email. The other email states, 'I'm planning to attack bridge X in the US.’ With a warrant requirement, neither message could be accessed and there would not be enough information available to acquire a warrant.

Right now, our intelligence officials see both of these messages because they are in direct communication with Hamas. The email mentioning specific plans to attack a bridge in the US is intercepted via Section 702. It's then quickly analyzed to find out who the person is and authorities move fast to foil the attack. When authorities go to arrest that person, a warrant is required at that time. The difference is, by being able to read the contents of the email, we have the information necessary to get the warrant and apprehend the suspect. When you prohibit that, there is no evidence to use to get the warrant and the suspect would be able to carry out the attack.

Again, if the Biggs-Jayapal amendment passed, we would have to get a warrant to read the two emails sent to this terrorist overseas. We would have no way of intercepting dangerous and time-sensitive messages and any terrorist on US soil would be able to operate under the cover of darkness to plan, execute, and recruit people for terrorist attacks within the U.S. Time means lives.

❌ Myth: This legislation carves out an exemption for Members of Congress from any investigation under Section 702.

✅ Fact: If a Member of Congress is threatened, this bill requires the FBI to request consent from the Member to further investigate the threat.

For example, the Section 702 process could reveal a conversation between two foreign terrorists about a threat to the district office of a member of Congress. Under current law, there is no requirement for the FBI to inform the member of this threat even though the FBI knows there is a potential threat. This legislation requires them to inform the member to let them know their district office was mentioned in the communication, but the FBI would need permission to further investigate using the member’s name and personal information.

❌ Myth: The bill lets the FBI surveil American citizens while ignoring the southern border.

✅ Fact: The bill specifically targets cartels to stop the flow of deadly narcotics and human trafficking crossing into the United States through our Southern border.

To crack down on the cartels, H.R. 7888 includes an amendment by Congressman Dan Crenshaw (R-TX) to enable the Intelligence Community to specifically target foreign narco-traffickers, affiliates of the cartels, as well as foreign companies who manufacture the precursors of illicit synthetic drugs, like fentanyl.

❌ Myth: The bill weaponizes the federal bureaucracy and does not address prior abuses by the Intelligence Community.

✅ Fact: The bill includes 56 key reforms focused on the FBI as well as any personnel who illegally target anyone as they did to the Trump campaign in 2016.

There is ample reason for concern about certain aspects of FISA that is currently in law. There has been misconduct by some at the highest levels of the FBI and Department of Justice (DOJ) regarding FISA abuse and politically biased motivations, including those related to the Trump-Russia investigation, which was nothing but a hoax. While corrupt individuals can abuse any law, the bill would prevent these abuses from happening in the future by:

Significantly reducing the number of FBI personnel authorized to make US person queries by 90% and prohibiting political appointees from approving efforts to investigate American citizens.
Making FISA misconduct a crime so leaks or false declarations similar to those made against Carter Page and the Trump campaign cannot happen again.
Creating enhanced criminal penalties for those who violate FISA applications or lie to the FISA court.
Prohibiting the use of political opposition research and press reports to get a FISA order as was done to the Trump campaign.

Click here for a full list of the fifty-six key reforms included in the House passed Reforming Intelligence and Securing America Act.

Keeping Americans Safe

At a time when our biggest adversaries (Iran, Russia, and the Chinese Communist Party) are trying to exploit America's shortcomings, allowing FISA Section 702 to expire would be a devastating blow to our national security. As you can see below, Section 702 has been used countless times to thwart attacks against Americans:

In 2009, Section 702 protected the nation from an al-Qaeda attack by Najibullah Zazi, who intended to detonate explosives on Manhattan subway lines.
In 2014, Section 702 again prevented attacks by assisting in the removal of ISIS leader, Hajji Iman.
In 2021, Section 702 played an important role in the U.S. Government’s response to the cyberattack on Colonial Pipeline in 2021.
In 2022, Section 702 contributed to the U.S. operation in Afghanistan to eliminate Ayman al-Zawahiri, a last remaining 9/11 architect.
Section 702 has identified threats to U.S. troops and disrupted planned terrorist attacks on military installations. For example, FISA Section 702 identified members of a terrorist cell planning an attack on a U.S. facility in the Middle East and 702 was used to monitor communications as the terrorists traveled through multiple countries. The U.S. Government, working with allies in the region, disrupted the terrorist attack.

First and foremost, I will always vote to protect the security of the American people. This includes protecting the right to privacy. H.R. 7888 accomplishes these priorities by focusing on enhanced oversight and establishing new criminal penalties to protect Americans’ privacy while also ensuring intelligence agencies and law enforcement can protect our nation from the threats we face every day.