Fears of a Trump Win Add Urgency to Effort to Tighten Surveillance Laws

The prospect of Donald Trump using the powers of the presidency as a tool of retribution has raised the stakes for a bipartisan push by Congress to tighten what data on Americans federal investigators can search without a warrant.

Donald Trump has said publicly in recent weeks that he wants to be “a dictator for one day,” that he will “root out” the “radical left thugs that live like vermin within the confines of our country.”

Some Democrats in Congress are taking Trump at his word, giving new urgency to a long-standing effort to overhaul the controversial spying program authorized under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows intelligence agencies to collect records of overseas communications of suspected terrorists and foreign intelligence agents. 

For years, civil liberties advocates have pushed to block the FBI from searching that trove of data for the records for Americans without first securing a warrant. The FBI has acknowledged repeatedly breaking its own rules and conducting improper searches.

The current law under Section 702 is set to expire in April, after the House and Senate this week approved a short-term extension as part of the National Defense Authorization Act (NDAA). That creates a window early next year for lawmakers to debate meaningful changes to the FISA law. This week, House Speaker Mike Johnson canceled votes on a pair of dueling FISA bills amid disagreements over the program's future.

The FBI currently makes some 200,000 queries of that database each year and has used it to check for members of the Black Lives Matter movement and people being investigated in Jan. 6, 2021 insurrection cases, according to court documents declassified earlier this year by the Office of the Director of National Intelligence. 

Those failures to protect Americans’ data from such searches have brought together an unlikely coalition of lawmakers to plug loopholes and increase Congressional oversight of the surveillance authority.

"The abuses of Section 702 have taken place under presidents of both parties,” says Chris Baumohl, an expert on national security and intelligence surveillance law at the Electronic Privacy Information Center. “That's why there's such a big bipartisan coalition to reform it.”

While some Democrats in Congress have long supported putting more guardrails on FISA, the prospect of Trump potentially returning to the Oval Office in 2025 has intensified those efforts. 

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“We saw how he tried to weaponize these government agencies for his own personal political gain last time around,” says Rep. Pramila Jayapal, chair of the Congressional Progressive Caucus and a senior Democrat on the Judiciary Committee. “There’s no question to me that if he were to get reelected, he will be, double, triple times as bad as he was last time.”

Some Republicans have their own motivations for wanting to revisit other authorities the FBI has under FISA dating back to the bureau’s sloppy work investigating links between Trump’s 2016 campaign and Russian intelligence officials. That investigation led to the FBI using a different section of FISA to wiretap Carter Page, an oil industry consultant who had served as a foreign policy adviser on the Trump campaign. But the justifications the bureau made to the FISA court to maintain that surveillance contained errors and information from press reports and political opposition research. 

As a result, Rep. Jim Jordan, the firebrand Trump defender who chairs the House Judiciary Committee, backed a bill that would allow Congressional leaders to attend any FISA court proceeding and place new restrictions on the FBI around using news clips and political research reports to justify its surveillance requests to the court. The law would also restrict federal intelligence agencies from buying the data of Americans from third-party data brokers. That bill passed out of the House Judiciary Committee on Dec. 6 with reforms that are “long overdue,” Jordan said in a statement, and would ensure Americans “are not subjected to unchecked surveillance by the federal government.”

Jayapal also supports the FISA reforms that passed out of Jordan’s committee to protect Americans’ data and privacy. But, she says, Trump’s presidential candidacy has made putting in “really strong guardrails” more urgent, particularly given how he “says that he wants retribution, and he’s going to be a dictator on day one.” 

The House Judiciary bill is just one of the proposals lawmakers are considering. There’s a competing bill with fewer limits from the House Intelligence Committee that some privacy advocates say would actually expand what data the FBI can access. And there’s also an effort to reauthorize the existing law beyond its expiration date in April, which wouldn’t allow for any of the new proposed restrictions to go into effect, and could extend the existing powers into 2025.

With the House set to depart in the coming days for the rest of the year, the window for reform may be closing. “I was hopeful that we’d be able to pass something this week that would have put pressure on the Senate,” says Jayapal. The decision this week by House Republican Speaker Mike Johnson to not put either of the competing reform bills up for a vote makes it harder for Congress to get anything done on the issue soon. Jayapal said she is nervous that sets the stage for FISA to be reauthorized with no changes “not just through April, but even beyond that.” 

Privacy experts are also concerned that the moment to curtail the FBI’s surveillance powers could pass without action, potentially allowing a future administration to push the limits of its surveillance powers. "It's not just what you think of this president but how these authorities have the potential to be abused in the wrong hands," says Kia Hamadanchy, a senior federal policy counsel at the ACLU.

Congress rarely gets much done during an election year. But anxiety over government surveillance exists on both ends of the political spectrum, raising the possibility that overhauling FISA might be one of their accomplishments. Whether “you’re worried they are buying your location data because you are going to gun shops or abortion clinics, the same core principles should apply,” says Baumohl. 

Reining in how the federal government can use the data of Americans, and requiring the executive branch to be more transparent with Congress, could make it harder for Presidents to abuse their power. “Overbroad surveillance powers are a would-be autocrat’s best friend,” says Elizabeth Goitein, the senior director of the Liberty and National Security Program at the Brennan Center for Justice. In countries led by dictators, Goitein says, “one of the ways that dictators got there and stayed there is through rampant surveillance.”