Concerns regarding potential bias in federal law enforcement practices against conservatives and Republicans have prompted lawmakers to scrutinize the Foreign Intelligence Surveillance Act (FISA). This law, set to expire at the end of the year, grants the FBI authority to surveil American citizens without a warrant, raising concerns about civil liberties and potential government overreach. A recent House Judiciary Subcommittee hearing highlighted these concerns and explored potential reforms.

Section 702 of FISA permits surveillance of non-U.S. citizens abroad. However, when Americans communicate with these individuals under surveillance, their communications are also collected. This “incidental” collection, potentially accessible by government agents without a warrant, has sparked controversy. Experts testifying before the subcommittee argued that the system requires substantial changes.

Testimony revealed concerns about the scale of surveillance. One expert described the volume of collected American communications as “enormous,” likely in the millions, and accessible to the FBI without a warrant. These communications, collected by the NSA through Section 702 surveillance, are shared with other agencies, enabling warrantless “electronic queries” that can reveal information about U.S. citizens.

The FBI's admission of improperly using warrantless search procedures over 278,000 times in 2021, including on January 6th protesters and George Floyd demonstrators, further fueled the debate. While the FBI claims to have addressed these “unacceptable” practices, some lawmakers advocate for FISA's complete elimination. Rep. Matt Gaetz (R-Fla.) plans to introduce a resolution to end FISA, arguing that the current system is beyond repair.

Others, however, suggest reform rather than elimination. They emphasize the need for “teeth and accountability” in oversight, citing a lack of consequences for those who violate the law. Allowing FISA to expire, they argue, would grant unchecked surveillance power to the executive branch. Without clear legal guidelines, the White House and Justice Department could devise justifications for expansive surveillance practices.

The debate also draws parallels to the case of Carter Page, a former Trump campaign aide whose FISA warrant was later deemed based on misinformation. This incident underscores the need for stricter warrant requirements for all searches of Americans' private data. Originally enacted after Watergate, FISA's scope expanded after 9/11. While Congress has periodically renewed and revised the law, experts point to a “consistent culture of violations.” The question remains: what actions will Congress take to address these concerns and ensure responsible surveillance practices?