OPINION:
2024 is off to a frightening start.
Currently, American hostages are being held captive by Hamas, Chinese nationals are stealing military secrets, hackers in Russia are targeting the U.S. intelligence community, and Houthi rebels in Yemen are attacking U.S.-owned ships in the Red Sea.
Those are a few recent well-publicized events. Every day, our country faces a growing number of security threats from emboldened adversaries both at home and abroad that require our intelligence community to stay vigilant and actively gather intelligence to protect the homeland. That’s why it’s more important than ever that we get FISA right and reauthorize it but with some much-needed reforms.
In 1978, Congress passed the Foreign Intelligence Surveillance Act, commonly known today as FISA. The purpose of the Act was to provide guardrails for U.S. intelligence agencies seeking to execute surveillance of foreign actors located inside the United States. At its most basic level, FISA authorizes the federal government to engage in investigative activity - whether electronic surveillance or physical searches - for national security purposes as long as they are directed at a foreign power or an agent of a foreign power, including terrorist organizations.
The section most hotly debated is Section 702 of FISA, which authorizes the U.S. government to run targeted surveillance of foreign nationals living abroad without needing to secure a warrant.
The debate is especially relevant right now, as without Congressional reauthorization, Section 702 will expire in April. To put it simply: Losing Section 702 would be a calamity for American security and a disaster for those who care about sensible and needed reforms to this process.
At the end of last year, the House Judiciary Committee passed the Protect Liberty and End Warrantless Surveillance Act (PLEWSA), which is a FISA reform bill that seeks to protect information about U.S. citizens that is collected inadvertently while information is gathered on foreign nationals. While it sounds innocuous enough, this is a bad bill. The unintended consequences of this legislation would hamper U.S. surveillance capabilities and undermine our ability to thwart potential terrorist attacks.
Let me explain — the current bill places unneeded restrictions on our intelligence community and law enforcement while simultaneously extending new rights to foreign terrorists, spies, and cartel members. That’s not what we need to get FISA right.
But there is another option that’s moving in the right direction. The House Permanent Select Committee on Intelligence also passed legislation in November, the FISA Reform and Reauthorization Act of 2023 (FRRA), that includes highly requested, critical reforms and is a significant improvement over a clean reauthorization. As I review PLEWSA, as well as FRRA, I realize that there is a delicate balance between privacy and safety inherent in both proposed pieces of legislation. The Biden administration’s many failures in the foreign arena, as well as in securing our borders, make this decision all the more important.
The civil liberty protections included in PLEWSA for foreign nationals in the U.S., who could be a threat to national security, go way too far. As a member of the Judiciary Committee, it pains me to say the final reauthorization of FISA needs to resemble the Intelligence Committee bill more closely than the Judiciary Committee Bill.
This is a complicated topic. It impacts both security and civil liberties. I urge my colleagues to consider the world we live in today - not the world we wished we lived in.
Our foreign adversaries will stop at nothing to gain an advantage. Congress needs to work overtime to ensure we don’t just hand them one for free.
• Ken Buck is an American lawyer and politician who has represented Colorado’s 4th congressional district in the United States House of Representatives since 2015.
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