The Lawfare Podcast – Lawfare Archive: FISA 702 Passes the House

Date: January 1, 2026 (original discussion April 16, 2024)
Participants: Benjamin Wittes (host), Stephanie Pell, Molly Reynolds, Preston Marquis

Overview

This episode dissects the House of Representatives' dramatic reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA 702), following a fraught political battle. The panel unpacks what’s in the House bill, the intense debate over warrant requirements for U.S. person queries, what concessions—if any—the civil liberties community won, the special dynamics of this year’s amendments, and what to expect as the legislation heads to the Senate. The conversation is analytical, occasionally sardonic, but primarily focused on the serious policy stakes.

Key Discussion Points and Insights

1. What is FISA 702 and Why the Fuss?

• Preston Marquis summarizes the basics: Section 702 enables the U.S. government to "conduct targeted surveillance of foreign persons located abroad with the assistance of electronic communication services" (06:25).
• Amid political rhetoric, the panel clarifies several misconceptions:
  • Wittes: “Does it allow for spying on political campaigns?”
    Marquis: “No.”
  • Wittes: “Does it allow for specific targeting of conservatives?”
    Marquis: “It does not.”
• The controversy is mainly about incidental collection—when Americans’ information is caught up in the surveillance of foreign targets, and how the government can query that data.

2. House Passage: Process and Politics

• Molly Reynolds explains the unusual process: after an initial failure earlier in the week, the House GOP, struggling with internal divisions and procedural obstacles, narrowly succeeded in passing the bill after a dramatic tie vote on a pivotal amendment (04:03-05:58).
  • “The House approved reauthorization of section 702... after considering a number of amendments... This was their second try [this week]...” – Reynolds, 04:03
• Tensions stemmed from both inter- and intra-party divisions, with strange-bedfellow coalitions of MAGA conservatives and progressive Democrats seeking stronger privacy protections.

3. Inside the Legislation: What’s Actually in the Bill?

Major Provisions:

• Limits on U.S Person Queries:
  • Only designated FBI officials can authorize these searches; pre-approval by an attorney or supervisor now required (07:14).
  • Codification of FBI “remedial measures” in response to past compliance abuses.
• No More Crime-Only Queries:
  • The FBI can no longer use Section 702 solely to find evidence of a crime; queries must have a foreign intelligence purpose.
    • “The base bill eliminates the FBI's authority to conduct US person queries solely in an effort to find evidence of a crime…” – Marquis, 11:16
• Additional Reforms around Title I FISA (the Carter Page ‘spying’ saga):
  • Tries to tighten requirements for political or media-derived info in applications.

4. The Warrant Requirement Debate: The Central Fight

• Proposal: Should searching for U.S. person data in 702 databases (even on already lawfully collected data) require a warrant?
  • Wittes: “The big difference between the forces that wanted the cleanest possible reauthorization and the forces who wanted radical reform was this warrant requirement question. Government one, privacy community zero on this, right?” (18:14)
  • Pell: “Yeah, I have to agree on that. It was very close... a tie vote fails.” (18:56)
• Notable Moment: The warrant amendment failed on a 212-212 tie, a highly unusual occurrence that became the defining drama of the day (19:04).
  • Reynolds: “[A tie vote] fails... This is definitely sort of in that category in the, in the universe of things we don’t usually see happen..." (19:04)

5. Other Amendments: What Else Was on the Table?

Amendments Discussed and Outcomes: (37:28-46:40)

• Chip Roy's Amendment: Requires quarterly FBI reports on US person queries, and allows some Congressional leaders to attend FISC proceedings.
• Balance Collection Prohibition: Codifies the NSA's voluntary end to “about” collection (communications merely referencing a target).
• Crenshaw Amendment: Expands “foreign intelligence” to include counter-narcotics (allowing use in fentanyl crisis context).
• Waltz Amendment: Allows vetting of foreign visa applicants against 702 data.
• Turner-Himes Amendment: Broadens who counts as an “electronic communication service provider,” debated for possibly expanding compelled cooperation; narrowed to exclude hotels, coffee shops, and libraries, but still faces privacy criticism.

On the “Fourth Amendment Is Not For Sale Act”:

• Not adopted. Would have barred law enforcement from buying data from brokers that would otherwise require a court order.
  • Wittes: “So it’s still for sale. In other words, we can still buy a Fourth Amendment.” (32:27)
  • However, a separate House vote under regular rules for this act is promised in following weeks.

6. Political Dynamics: Why Was It So Contentious?

• Wittes: “It used to be just Democrats and Justin Amash” (opposing 702) – now it’s a growing faction of Republicans too, as 702 has been conflated with previous political surveillance scandals (23:10).
• The decision to cut the reauthorization period from the usual five years to just two was a significant House concession.
  • Reynolds: “…one of the principal things that changed… was this concession… only two years rather than five… If it expires in two years and Donald Trump is reelected… you might be able to get a different kind of bill through…” (26:39)

7. Looking Ahead: The Senate’s Role

• Senate faces the same divisions, but with its own unique dynamics.
  • Reynolds: “...there’s a one motion to table that the House will have to vote on next week before the bill can actually go over to the Senate…” (48:31)
• There is uncertainty about whether the Senate will take the House bill as-is or add its own amendments, especially on the warrant requirement, with figures like Sens. Wyden, Lee, and Durbin pushing for privacy reforms.
  • Wittes: “Can you get a bill through the Senate without a vote on a warrant requirement?” (50:37)
  • Marquis: “...the Senate dynamics are fully primed to come down again on this question of do we have a warrant requirement or do we not.” (53:30)
• Potential paths forward include Senate votes on amendments (possibly needing 60 votes), or ending up in a conference committee.

Notable Quotes & Memorable Moments

• Wittes, on the warrant requirement: “The big difference...was this warrant requirement question. It was always going to be a sticking point... Government one, privacy community zero...” (18:14)
• Reynolds, on the tie vote: “This Congress has seen its fair share of high drama moments on the House floor, but this is definitely... in the universe of things we don’t usually see happen...” (19:04)
• Pell, on the “Fourth Amendment Is Not For Sale” act: “You can buy things that the Fourth Amendment would otherwise require law enforcement to get through a compelled order…” (32:36)
• Reynolds, on political concessions: “[The change to a two-year reauthorization is] a pretty significant change in the evening...” (31:03)
• Marquis, on expansion of ECSPs: “...entities who have access to equipment upon which those communications are transmitted or stored… just opened up the floodgates...” (44:56)

Timestamps for Key Segments

• Recap of House floor drama: 04:03–06:25
• Basics of FISA 702 and base bill provisions: 06:25–12:04
• Warrant requirement debate and tie vote: 13:18–19:04
• Background on tie vote mechanics and political fractures: 20:44–23:47
• Debate over the “Fourth Amendment Is Not For Sale” act: 32:05–35:36
• Other amendments rundown: 37:28–46:40
• Senate prospects and scenarios: 47:47–57:42

Conclusion

This episode gives an in-depth, often behind-the-scenes view of the FISA 702 House reauthorization battle: the high stakes, the political breakpoints, the key policy divisions, and the looming Senate showdown. For those seeking to understand not just what happened, but what it means for surveillance law, privacy, and political coalitions, it’s both substantive and highly accessible—replete with both sharp analysis and dry wit.