An attempt by Sen. Rand Paul (R–Ky.) to completely end the Foreign Intelligence Surveillance Act (FISA) court’s authority to approve warrantless surveillance of Americans went down in flames this afternoon in a blowout 11–85 vote. The Senate subsequently passed a bill that renewed some of these powers with more modest reforms.
Paul’s legislation was essentially a Hail Mary pass: It would have forbidden the feds from targeting American citizens with any of the surveillance, wiretapping, and data collection tools authorized by the FISA court. The National Security Agency and the FBI would instead have to go through traditional federal courts and get a warrant. (The court could still allow surveillance of foreign targets.)
Prior to the vote, Paul took to the Senate floor to argue that the law has been woefully abused and twisted to target Americans, taking note that the FISA court had been specifically designed to make sure the FBI was not secretly surveilling Americans for engaging in protected or political speech. He said that the investigation of former Donald Trump aide Carter Page demonstrated that the FISA court “was manipulated and lied to” to get permission to wiretap Page.
“We should all be appalled at this abuse of power,” Paul said. He argued that the FISA court denies Americans their Fourth Amendment protections, noting that surveillance targets aren’t informed of the warrant submission and aren’t allowed legal representation at a hearing. He added that the court’s decisions are not based on “probable cause,” as the Fourth Amendment requires, but on a lesser threshold showing that the requested surveillance is “relevant” to an investigation.
“That’s not constitutional and we can’t make it constitutional,” Paul said.
The most recent transparency report from the Office of the Director of National Intelligence shows that despite reforms to the system, FBI officials secretly query records for information about U.S. citizens thousands of times a year. The report also says that the federal government has not opened any investigations of “a U.S. person who is not considered a threat to national security” based on this acquired information since the office started tracking this info in 2017. Last year, the government entered evidence gathered from FISA surveillance in seven criminal proceedings.
The failure of Paul’s bill should hardly come as a surprise after another surveillance vote yesterday. Lawmakers weren’t even able to push through a measure telling the FBI it can’t collect our browser and search data without getting a warrant. There was no chance the Senate was going to vote to stop all targeting of Americans via the FISA court. Still, 11–85 is a pretty sound defeat.
After Paul’s proposal failed, the Senate voted on H.R. 6172, a compromise bill to restore some USA Freedom Act surveillance powers (which expired in March) with some reforms. The bill easily passed, 80–16. The authority to engage in mass collection of Americans’ online and phone metadata is now officially gone. The bill specifies that the FBI can’t treat cell phone location and global positioning system data as part of a “business record” (meaning it’s harder for the feds to secretly collect that data from your phone service provider). The bill also bolsters the FISA court’s ability to bring in independent “amicus curiae” advisers to consult and defend the constitutional rights of any Americans who are being targeted for FISA warrants. (This process was bolstered further on Wednesday, when the Senate passed an amendment attempting to ensure that Americans aren’t targeted for political purposes.)
Because the Senate amended H.R. 6172 yesterday, the bill will have to return to the House for another vote. It will likely pass.
The renewal comes with another sunset in December 2023, so we’re not necessarily stuck with this system forever. But as today’s votes show, it’s a long road to convince senators to treat Americans’ Fourth Amendment protections seriously.