Today, Ranking Member Jerrold Nadler (D-NY) delivered the following floor statement, as prepared, for the House debate on H.R. 7888, the “Reforming Intelligence and Securing America Act”:

"M. Chairman, I rise in strong support of meaningful reform to FISA Section 702 and in strong opposition to a mere fig leaf or—even worse—an expansion of 702.

Unfortunately, we will not know which of these paths we are taking until the conclusion of this debate.

What I know at this moment is that the base text before us right now is completely inadequate.  Although it has some perfectly fine provisions, it does not represent real reform.  Some of the proposed amendments that will be coming up today would take us in the wrong direction.  And changing the sunset from five years to two years does absolutely nothing to improve the bill.

Ultimately, this legislation should only move forward if it contains an amendment to mandate that the intelligence community obtain a probable cause warrant before they search the 702 database for Americans’ private communications. 

Some of my colleagues appear confused about how 702 collection works and what we mean when supporters of a warrant requirement refer to “backdoor searches” for U.S. person information.  So, let’s be clear about what we are talking about.

FISA Section 702 permits the intelligence community to sweep up the communications of foreign targets located overseas.  When these communications are obtained, they go into what is known as the “702 database” where all the 702 data is housed. 

If the U.S. government wants to target a U.S. person for foreign surveillance—U.S. person meaning an American or a legal permanent resident—they already can.  They do this by getting a warrant under Title I of FISA—a separate and distinct part of FISA from Section 702. The government cannot target Americans under 702, because 702 does not protect the constitutional rights of the targets of the surveillance. Foreigners not located on U.S. soil do not have constitutional rights, so this is not a problem. 

What is a problem, however, is that massive amounts of Americans’ communications are still swept up in 702 searches.  If a U.S. person communicates with a foreign target, that American’s communications with the target end up in the 702 database too.  While we do not know precise numbers, we know that a vast amount of Americans’ communications is swept up every year.  

The intelligence community is not supposed to search the 702 database for U.S. person identifiers, like our names, phone numbers, and addresses, without cause.  Searching for Americans’ private communications in the 702 database—communications the government otherwise would not have access to without a warrant—is the constitutional equivalent of conducting a warrantless search.

But we know that the government breaks this law all the time—278,000 times, in fact, at last count, in 2021 alone. 

Officials are supposed to find it reasonably likely that a query will turn up evidence of a crime or foreign intelligence information.  But that did not stop them from searching for protesters, politicians, and political donors, to name a few, without a proper predicate. 

Because of these repeated violations, Chairman Jordan and I agree that the only way to preserve Americans’ privacy and constitutional rights is to require the intelligence community to obtain a probable cause warrant when they want to search the communications of Americans housed in the 702 database.  This is a basic tenet of the Fourth Amendment.

We have repeatedly heard some of our colleagues tell us that “The sky is falling”—that a probable cause warrant requirement would end U.S. person searches of the 702 database.  But there are no facts to back up these claims. 

We will be considering an amendment today to add a warrant requirement for U.S. person searches of the 702 database.  This essential amendment makes exceptions for victim consent, cybersecurity cases, and exigency.  Thus, the vast majority of these searches can continue without a warrant.  But for the small percentage of searches of Americans’ communications that would be affected, the government should have probable cause to search their communications.  

It is simply unfair to ask the intelligence community to both zealously protect our security while also protecting the constitutional rights of those surveilled.  America’s system of checks and balances exists precisely for cases such as this: Where two considerations must coexist at odds with one another.  For too long, FISA Section 702 has enabled the surveillance of Americans without adequate safeguards to protect our civil liberties.  

Americans need Congress to enact those guardrails, and with Section 702 expiring soon, we have a rare opportunity to protect Americans’ privacy while giving law enforcement the tools they need to keep us safe.

I encourage my colleagues to vote no on this legislation unless a probable cause warrant is adopted, and I reserve the balance of my time."