Lee, Durbin Introduce Bipartisan Protections Against Warrantless Data Searches

WASHINGTON - U.S. Senator Mike Lee (R-UT) today introduced bipartisan legislation with cosponsor Senator Dick Durbin (D-IL) protecting Americans from warrantless government surveillance and foreign threats. The Security and Freedom Enhancement (SAFE) Act advances national security by reauthorizing Section 702 of FISA and protects Americans' privacy and civil liberties by establishing safeguards against warrantless surveillance by the federal government.

"The many documented abuses under FISA should provoke outrage from anyone who values the Fourth Amendment," said Senator Mike Lee. "From warrantless searches targeting journalists, political commentators, and campaign donors to monitoring sitting members of Congress, these infringements reveal a blatant disregard for individual liberties. Our bipartisan reforms to FISA Section 702 are common sense and imperative to restoring trust in our government's commitment to the Constitution."

"Section 702 is a valuable tool to help keep our nation safe," said Senator Dick Durbin. "However, it's being used to conduct thousands of warrantless searches of Americans' private communications. That's unacceptable. Our bipartisan SAFE Act is a commonsense solution to continue protecting our country from foreign threats-while safeguarding Americans' civil liberties and privacy."

The SAFE Act reauthorizes Section 702 for two years and includes the following key safeguards:

1. Requires government agencies to obtain a FISA Title I order or a warrant before accessing the content of Americans' communications collected under Section 702. This narrow warrant requirement is feasible to implement and sufficiently flexible to accommodate legitimate security needs.
2. 1. The bill will not require a warrant for searches of foreigners' communications or searches to uncover connections between targeted foreigners and Americans.
   2. Requiring a warrant only for accessing the content of communications when a U.S. person search has returned results would dramatically limit the number of cases in which the government must seek a warrant, ensuring that the requirement is workable in practice.
   3. The requirement contains robust exceptions for exigent circumstances, consent by the subject of the search, and cybersecurity-related searches - ensuring that the warrant requirement will protect civil liberties without endangering lives or national security.
3. Bolsters the role of amici curiae who assist the FISA Court in evaluating arguments presented by the Department of Justice by creating a presumption that amici should participate in certain particularly sensitive or important matters and by increasing amici's access to information necessary for advising the court.
4. Adopts provisions requiring additional layers of internal supervision of U.S. person queries and other measures to increase accountability, compliance, and oversight.
5. Closes the "data broker loophole" that intelligence and law enforcement agencies use to buy their way around the Fourth Amendment and statutory privacy protections by purchasing Americans' sensitive information, including location history, from commercial data brokers.
6. 1. This provision strikes a compromise by allowing the government to purchase data sets that may include Americans' information if that information cannot be identified and excluded before purchase. In such cases, the government would be required to apply strict minimization procedures to limit the retention and use of Americans' data.
   2. Currently intelligence agencies are left to craft their own rules for purchasing sensitive information without accounting for what information they buy and how they use it.
7. Fixes the overbroad expanded definition of Electronic Communications Service Provider (ECSP) that now defines an ECSP as any service provider with equipment used to transmit or store electronic communications. This definition would subject almost any business, religious organization, or nonprofit that uses email, voicemail, or any other communications equipment to compelled government data collection under FISA.
8. Closes the Section 215 loophole that has allowed the Government to continue using a surveillance authority which expired in 2020.

Read the full bill text here.

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