Senator Lee Publishes Bipartisan New York Times Op-Ed; Urges Protection of Americans’ Private Data against Warrantless Searches by Federal Government

WASHINGTON - U.S. Senator Mike Lee (R-UT) today published a bipartisan op-ed in The New York Times calling for protections against warrantless searches of Americans' private digital data by the federal government. The article, penned by Senators Lee and Dick Durbin (D-IL), urges the passage of their Security and Freedom Enhancement (SAFE) Act to reform Section 702 of the Foreign Intelligence Surveillance Act (FISA) to stop the rampant abuse of FISA's statutes to target and violate the rights of innocent Americans without a warrant.

"We write as Senators with opposing views on many issues. One of us is a longtime Democrat, the other a conservative Republican. But today, we join together to call on our congressional colleagues to safeguard the American people from warrantless government surveillance," write Senators Mike Lee and Dick Durbin. "Two hundred and fifty years ago, the Founders of this nation understood that protection from unreasonable government searches is essential to a society grounded in liberty rather than tyranny.

"We owe it to the American people to meet this moment and do our jobs to protect both national security and civil liberties. Our bill offers a bipartisan solution to do just that."

The SAFE Act 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 New York Times op-ed here.

Read more about the SAFE Act here.

Access the full bill text here.

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