The future of an amendment long championed by privacy hawks is uncertain after House Speaker Mike Johnson (R-LA) quashed the possibility of including it in legislation to reauthorize Section 702 of the Foreign Intelligence Surveillance Act.
Rep. Warren Davidson (R-OH), who sits on the House Judiciary Committee, had pushed to incorporate the “Fourth Amendment Is Not For Sale Act” in broader legislation to reauthorize Section 702, a powerful government spy tool. Davidson’s bill would force federal agencies to obtain a court order to purchase commercially owned data of U.S. citizens, such as their online activity and location information.
However, the current legislation to reauthorize Section 702 of FISA is headed for a floor vote this week and does not include Davidson’s amendment. Instead, the House is set to vote on the Not For Sale Act as a separate bill, Davidson said in an interview with the Washington Examiner.
How that bill arrives on the floor, he said, is up in the air.
Johnson has been angling for Davidson’s amendment-turned-bill to go to a vote this week under suspension, which would require support from two-thirds of the House to pass. However, Davidson said Judiciary Committee Chairman Jim Jordan (R-OH) is engaging with the speaker about bringing the bill up in a manner that would allow it to pass with a simple majority.
Davidson said he would prefer to have the vote on the Not For Sale Act in a different week rather than have it arrive on the floor under suspension this week — an effort that he believes is by design.
“I think in context of this week, there’s a concern that if you allow a vote and only by suspension, the goal is to make sure that it doesn’t pass, on the one hand,” Davidson said. “And on the other, to simultaneously let people say, ‘Oh, well, I voted for this Fourth Amendment’s Not for Sale thing to protect your privacy, but I had to vote against the warrant requirement.'”
Aside from the dispute over Davidson’s bill, warrant requirements have emerged as the most contested matter as the House pushes to pass Section 702 reform legislation ahead of April 19, the date the surveillance program expires.
“It seems like it’s maybe, in some ways, designed to sabotage the warrant requirement vote,” Davidson said.
The fight over government surveillance reform has been years in the making after then-President Donald Trump signed into law a six-year reauthorization with mild reforms in 2018.
In the lead-up to Section 702’s expiration, the Judiciary and Intelligence committees introduced competing proposals with a slate of new reforms that primarily involved tightening restrictions on the FBI’s use of the surveillance program. Although the two committees largely agreed on most of the reforms, they have remained deeply divided on whether to require FBI agents to obtain warrants when using Section 702 to search data belonging to U.S. persons. The Intelligence Committee opposes warrant requirements and Davidson’s legislation.
The intelligence community on the whole has maintained that warrant requirements would render Section 702, a critical national security tool, useless, leaving the United States more prone to foreign terrorist attacks and cyberattacks.
Davidson contended that the Judiciary Committee’s bill text should have been the base text, which, in addition to warrant requirements, also included the Not For Sale Act. If the Intelligence Committee wanted to get rid of Davidson’s provision, it could have offered an amendment to remove it, Davidson said.
Davidson blamed Intelligence Committee Chairman Mike Turner (R-OH) for causing an “international incident” to scuttle a debate and vote for Section 702 earlier this year, referring to the chairman vaguely alerting people in February to a “serious national security threat” that later turned out to relate to a Russian anti-satellite program.
Then, Davidson said, Turner “successfully persuaded” the speaker to pull the Not For Sale Act from the bill.
“So yeah, I’m pretty frustrated,” Davidson said. “I mean, it’s a couple of broken promises in there and is, frankly, you know, bad incentive structure for reform.”
Davidson took aim at Johnson, noting that before he was speaker, the Louisiana Republican supported the Judiciary Committee’s views on the warrant requirement and the Fourth Amendment Is Not for Sale Act.
“And then, when he became speaker, the Intel Committee has coerced him to go along with the Intel viewpoint,” Davidson said. “So now the speaker is working to prevent the warrant requirement from passing and has pulled the Fourth Amendment Not For Sale from consideration.”
“So it’s like he’s a different person,” Davidson said.
Johnson has not only drawn ire from Davidson and others in his party but also from outside groups, such as Demand Progress, an organization that has been urging Congress to rein in government spy powers.
“The speaker just started to really try to shift things in favor of the Intelligence Committee as much as possible,” Sean Vitka, policy director at Demand Progress, told the Washington Examiner. “That is a major problem. The overall effect it’s going to have on reform — it’s a five-alarm fire.”
The Washington Examiner reached out to Johnson’s office for comment.
Vitka warned that Davidson’s amendment was crucial for addressing what he described as a worsening problem of government agencies purchasing Americans’ private information from data brokers.
“They are selling everything from who donates to the ACLU to who has a concealed carry firearm and lists of people who go to gun stores and lists of people who go anywhere for anything. It’s a pretty severe problem,” Vitka said.
He pointed to a recent report in Politico that revealed a British mega data broker who owned LexisNexis had ramped up lobbying efforts in part because of the FISA fight. The lobbying goals included advocating looser restrictions on what data the brokers could sell.
“The chairman of the Intelligence Committee is currently doing a British data broker’s dirty business in Congress,” Vitka said.
Section 702’s imminent expiration has put Republicans in another time crunch just weeks after they ran up until the last moment with the fiscal 2024 appropriations bills. Many Republicans have come out against the current Section 702 legislation, largely because of Johnson’s shifting posture on it, though the bill can still easily pass with the help of Democrats, who are also divided on the matter.
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On social media, several Republican lawmakers launched a coordinated campaign on X on Tuesday, writing, “Get a warrant. #FISA.” Davidson also dropped off buttons at colleagues’ offices that said, “I support your rights,” with the word “spy” crossed out. With the buttons came a note from the Ohio Republican in which he asked members to support the Fourth Amendment by wearing the pin.
Rep. Matt Gaetz (R-FL) said Tuesday on his podcast Firebrand that he would vote “no” on a preliminary measure that needed to pass before the House could vote on the final reauthorization bill. Opposition to that initial measure could put Johnson in a bind because of Republicans’ wafer-thin majority. Davidson and Rep. Dan Bishop (R-NC) joined Gaetz on the podcast wearing the buttons.