Durbin Calls For Reforms To FISA Section 702 Ahead Of Its Expiration Next Month

Durbin Calls For Reforms To FISA Section 702 Ahead Of Its Expiration Next Month

Durbin: "Congress has a responsibility to protect our national security and the privacy and civil liberties of Americans."

WASHINGTON - In a speech on the Senate floor, U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, called for serious reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is set to expire next month. Section 702 grew out of a secret warrantless surveillance program conducted by the Bush Administration after the terrorist attacks on September 11, 2001. When this illegal spying program was exposed, Congress enacted Section 702 as a temporary measure.

"Like so many expansive government powers that are adopted during times of emergency, this authority has now become a fixture of our surveillance architecture. When it comes to collecting intelligence on foreigners located abroad, the value of this tool is not in serious dispute," Durbin said. "But there is a fatal flaw at the core of Section 702: this authority is also used for warrantless spying on innocent Americans."

Durbin continued, "Americans' private emails, phone calls, and text messages with friends, family, colleagues, businesses, and any number of other contacts around the world are swept up under Section 702. The government then searches these private communications, which are protected by the Fourth Amendment, I might add, without a warrant or other court order. Congress has repeatedly failed to fix this end run around the Constitution. As a result, for years, the intelligence community has abused Section 702 to spy on business and religious leaders, political parties, campaign donors, journalists, and protestors across the political spectrum."

In 2024, Congress passed the Reforming Intelligence and Securing America Act, which codified new reforms intended to rein in these abuses. These measures have reduced the number of unlawful searches, but Congress failed to require a warrant for searching Americans' communications. At the same time, Congress greatly expanded Section 702 to include counternarcotics and immigration vetting-and conscripted a shocking array of American businesses into Section 702 spying. Durbin voted against this legislation.

In February, Durbin and U.S. Senator Mike Lee (R-UT) reintroduced the Security and Freedom Enhancement (SAFE) Act-a bipartisan bill that would reauthorize Section 702 with common sense reforms to protect Americans' privacy.

"Our bill preserves the core value of [Section] 702 as a foreign intelligence collection tool, while preventing the government from using it to target the constitutionally protected communications of Americans unless they get court approval," Durbin said. "Our warrant requirement takes legitimate operational and security needs into account so that it won't be unduly burdensome or impede action in an emergency. What it would do is stop the government from accessing the private communications of Americans without a proper basis under the Fourth Amendment to the Constitution. Such a simple requirement to comply with the Constitution should have been included in Section 702 from the outset."

The SAFE Act would also prevent government agencies-like ICE, Customs and Border Patrol, the FBI, and others-from skirting the Fourth Amendment to obtain Americans' sensitive location information and other personal details from data brokers. ICE is using this data to track U.S. citizens exercising their First Amendment right to protest. If the FBI wants to track someone's phone, obtain their location information, or access their Google search history, the agency should be required to get a judicial warrant. Instead, government agencies are exploiting gaps in outdated laws to buy sensitive information from data brokers. It's a loophole that the SAFE Act addresses.

Durbin argued that the time to truly reform Section 702 is now-not later. When Congress extended Section 702 in 2024, the argument was that Congress needed more time. So, Congress reauthorized Section 702 for just two years to see how the existing compliance measures were working.

"And now here we are, two years later, and the opponents of real reform are saying exactly the same thing. We've been hearing these same excuses for over 20 years. It's time to stop avoiding the issue and protect Americans' constitutional rights once and for all. Not later. Not next time," Durbin said.

In 2024, the last time Section 702 was up for reauthorization, Durbin was Chair of the Senate Judiciary Committee, which has jurisdiction over FISA. Durbin held a public hearing more than six months before the authority expired so members could ask Biden Administration officials about how they were using Section 702. Now, the Trump Administration refuses to testify publicly about how they are using this sweeping surveillance power.

Last month, Durbin sent a letter to Senate Judiciary Committee Chairman Chuck Grassley (R-IA) asking him to hold a hearing with Trump Administration witnesses as Congress debates the issue. Durbin's request followed a recent Committee hearing on the topic-without any Trump Administration officials present.

Durbin concluded, "Enough is enough. There is no excuse for ramming through an extension of Section 702 at the last minute without regular order… The American people deserve better from their representatives. We can, and we should, protect the American people from threats to their security and threats to their civil liberties."

Video of Durbin's remarks on the Senate floor is available here.

Audio of Durbin's remarks on the Senate floor is available here.

Footage of Durbin's remarks on the Senate floor is available here for TV Stations.

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