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Editors Note: This is part of a multi-part series on theFISA Section 702reauthorization and reform debate.

Q. There are loud voices on either end of the spectrum with regard to Section 702 of the Foreign Intelligence Surveillance Act (FISA), the intelligence authority set to expire at the end of the year unless reauthorized by Congress. The Biden administration and other supporters of the Section 702 program argue that it should be reauthorized as is; others believe that it should be overhauled (if not allowed to sunset). Where do you fall on this debate? From your experience investigating and litigating prominent national security cases and as an intelligence operations attorney, do you think Section 702 is as imperative as the Executive branch has stated? And likewise, do you think any reforms to the program are necessary or appropriate?

Yes I think it is imperative to reauthorize Section 702. It is a fast and efficient way to obtain important national security information in a manner that complies with the Constitution. But I do want to distinguish Section 702, which is a foreign intelligence tool, from a classic criminal investigative tool. I worked in the Department of Justices National Security Division in three capacities: as a FISA operations and oversight attorney, as a national security policy counsel, and as a cyber and counterespionage prosecutor. My views on Section 702 which are my own and not those of any employer, past or present come more from my experience as an operations and oversight attorney and policy counsel than my time as a national security prosecutor.

And I also think it should be updated, consistent with the history of updates to FISA as the technology, scale, use, and public perception of foreign intelligence surveillance have evolved. In particular, because of the global nature of communications and travel, the built-in safeguards to prevent targeting of U.S. persons and people within the United States have to be periodically updated. And because law enforcement officers and intelligence officers are always thinking of new ways to use the information and systems available to them for good-faith reasons related to keeping the nation safe it is important to keep tabs on, and think critically about, those new uses.

Queries of previously collected information are a great example. At first, for many it was hard to see how searching information that had already been collected pursuant to court-approved procedures would cause a problem. As the practice became more widespread, however, public concerns grew about reverse targeting or routine checks for U.S. person information. This all happened as storage capacity and search capability continued their exponential expansion. New technology and new practices led to new concerns, which led to new rules. That is entirely appropriate.

To me, the important lesson here is that the system worked. The oversight mechanisms built into Section 702, which involve all three branches of government, provided the insight and transparency necessary to surface the issue and address it. That oversight distinguishes Section 702 from many historical and non-U.S. intelligence collection programs.

Q. Thats an important insight on intelligence programs and their oversight structures changing over time as communications and technology evolve. Can you provide some further context on changes to FISA over time and how Section 702 fits into this picture?

I started working on FISA operations in 2005, before Section 702 existed. People may not remember how intense the pace of global counterterrorism efforts was at that time. If you look at publicly available statistics, you can see the drop in full-blown individually targeted FISA orders that occurred after Section 702 became law. If we can infer that this drop is at least partly due to the governments new authority to target, without a particularized warrant or order, the communications of people who are neither U.S. persons nor present within the United States, this makes a lot of sense. There is no Constitutionally based reason to apply Fourth Amendment protections such as particularized findings of probable cause to that group (that is, non-U.S. persons located abroad), and there is a limit to how many individual FISA applications DOJ, the FBI, and the FISA court can process and oversee. So, it is reasonable to come up with a new system that applies Constitutional protections to those who are entitled to them, imposes court supervision over Executive branch activities, and allows for policy-based limitations such as those contained in Executive Order 14086.

Much of the opportunity and need for Section 702 is based on technological change. When FISA was enacted in the 1970s, most international communications were transmitted by radio transmissions. Those communications were exempt from FISA as long as they did not target a U.S. person in the United States and included a party outside the United States. The U.S. government could therefore use technical means to collect those communications with no court oversight at all. Signals intelligence collection can sometimes be unreliable and risky, and if you go visit the NSA museum you will see a memorial wall that shows just how dangerous it could be. But as technology developed, the same foreign communications that the government used to try to pull from the air are increasingly transmitted over the wire and through the United States, where the U.S. government can often acquire them more reliably and safely.

That change in some ways enhances intelligence agencies technical ability to safely acquire those foreign communications. Because people around the world, including in the United States, often use the same infrastructure and services to communicate, it also increases the risk of acquiring communications of U.S. persons or people within the United States. Thats one big reason that close court supervision is required but that oversight can be accomplished without requiring lengthy factual declarations and individualized findings of probable cause.

Q. On that note, lets discuss in more detail one of the proposed reforms: a warrant requirement to query the database of information already collected under Section 702 for U.S. person information. Is there precedent for imposing such a requirement? Do you think it would be a valuable modification to the program?

Requiring a warrant to search previously collected data for U.S. person information is a good idea. I dont think its clear that the Constitution requires it. But thats not the end of the inquiry.

For example, when the Electronic Communications Privacy Act was enacted, there was not general agreement that the Constitution required a warrant to search the contents of email messages a user stores with their service provider, but Congress nonetheless imposed a statutory requirement to provide the same level of protection based on a policy goal of extending a Fourth Amendment level of protection to electronic communications.

Its also helpful to remember that the U.S. government was conducting national security surveillance before FISA without orders, warrants, or any other involvement of judges. When Congress first enacted FISA, there was no consensus that the Executive branch required a warrant to conduct foreign intelligence surveillance. People dont appreciate this now, but FISA brought national security surveillance under judicial supervision. So while the Constitution sets a minimum standard when it comes to civil rights and limits on the government, Congress can go further, and has done so for policy reasons in the past.

There is a case for Congress to do that now. It is essential for Americans to have confidence in their government and particularly in their law enforcement and intelligence agencies commitment to protecting Americans rights. Particularly given the skepticism that currently pervades American society, requiring the government to establish probable cause and obtain judicial approval before searching for a U.S. persons communications within previously collected material would bolster that confidence and is a relatively light burden on the government.

Yes, search warrants take time, and FISA search warrants can be onerous to draft (which is in part the responsibility of DOJ to fix). But when you think about how much 702-acquired data the government may be sitting on and how long it may keep it, you can see how practitioners and the public alike would be concerned that collecting all of that information without probable cause or a warrant based on targeting of non-U.S. persons, and then searching that information for U.S. person information with no further approvals, could be seen as an end-around the warrant requirement. I dont personally see it that way, but a warrant requirement (with an emergency exception) is a small price to pay to earn and maintain the confidence of the American people in their national security institutions.

Q. Some have argued that imposing a warrant requirement for U.S. person queries of the Section 702 database is too onerous. Given your extensive experience in obtaining both FISA and non-FISA warrants, can you walk us through what this would really mean in practice?

Obtaining a criminal search warrant is usually a fairly straightforward process. When I was a local and federal prosecutor, my detective or agent and I would draft an affidavit that was accurate and established probable cause. For physical search warrants, such as a search of a residence, there might be discussions with supervisors about officer safety, means of entry, strategic considerations about alerting the target, the permissible scope of the search, or the potential for media attention. Other than my first several warrants as a junior Assistant District Attorney, I dont remember having a supervisor flyspeck an affidavit or ask for more factual detail. For search warrants targeting electronic communications accounts like email and social media, the process and timeframe for obtaining a warrant were quick and smooth.

In contrast, it is well-known that writing a FISA application and getting it approved for submission is hard and takes a long time. Part of this is by design, and is a purposeful safeguard given the classified nature of the proceedings. Every FISA application has to be approved by the Attorney General (AG), Deputy Attorney General (DAG), or Assistant Attorney General (AAG) for National Security, and has to be certified by the FBI Director or a similar official at an intelligence agency. The legislative history from the 1970s indicates that part of the reason for the high-level approvals is to ensure quality control as well as individual accountability; no one wants to bring a substandard or under-investigated application to a high-level official.

Another reason for this difference is that criminal search warrants are much more likely than FISA orders to be unsealed and revealed to the target at some point. If the execution of a criminal warrant reveals evidence that is later used to charge and prosecute a defendant, the affidavit and warrant are disclosed to the defendant, who can challenge their sufficiency in a motion to suppress evidence. Criminal warrants to search premises or physical property are often provided to the target at or near the time of a search. Criminal warrants to search electronic communications accounts may be subject to non-disclosure orders, but those orders are usually not indefinite and most providers will notify targets when a non-disclosure order elapses and is not renewed. FISA orders, in contrast, usually do not produce evidence that is used in criminal cases and by default remain classified. In fact, even when evidence acquired through a FISA order is used in a criminal case, the order and supporting materials are neither provided to the defendant nor made available to the public. Rather, if a defendant moves to suppress FISA-acquired evidence, the judge who hears the motion reviews the FISA materials without the involvement of the defense.

As a result of these considerations, lessons learned from negative experiences, and, to an extent, bureaucratic inertia, the amount of detail that FISA applications contain has grown to far exceed what would be included in an ordinary criminal search warrant application. This comes at a cost. DOJ attorneys and FBI agents spend substantial time taking questions from supervisors, finding answers, and incorporating new facts into lengthy declarations. And every new detail is an opportunity for an inaccurate or unsupported statement, whether or not the statement is material. Successive rounds of editorial and supervisory reviews add additional time to the process. Each extra requirement, whether official or unofficial, comes from a good place a desire to avoid mistakes, an appropriate response to prior errors, anticipating supervisors questions ,, but they add up can result in extremely lengthy applications that take weeks to prepare. In short, there are some good reasons to have more controls and more review for FISA applications than criminal ones, but it would be worth stepping back and revisiting whether the current system is optimal.

In any event, if Congress does add a warrant requirement, it is likely to contain an emergency exception. In fact, the PCLOB recently recommended individualized judicial review and authorization by the FISC for all U.S. person queries with exceptions limited to consenting U.S. persons or exigent circumstances. Moreover, FISA itself allows the AG, DAG, or AAG to authorize emergency authorities under specific conditions and seek retroactive approval from the court. Fourth Amendment jurisprudence provides an additional exception to the warrant requirement under circumstances such as imminent threats to life and safety. It would therefore be important and reasonable for a new warrant requirement to allow law enforcement to move quickly in the event of an imminent threat.

In that regard, it is important to bear in mind that Section 702 targets overseas threats to U.S. security such as international terrorism. If investigators urgently need to access a U.S. persons communications that were collected under Section 702, that could mean that a potential terrorism threat is crossing the border into the United States (physically, electronically, or otherwise). That is the exact situation in which we need an efficient process in place to allow law enforcement to get the information they need consistent with Constitutional considerations.

A warrant requirement that contained an emergency provision with retroactive approval would provide the accountability needed to maintain public confidence. If configured and implemented properly, it would allow officers to obtain the information they need and move as quickly as necessary, just as they have historically done in the criminal law enforcement sphere.

4th Amendment, Biden administration, communications, Congress, Department of Justice (DOJ), Federal Bureau of Investigation (FBI), FISA Section 702, Foreign Intelligence Surveillance Act (FISA), intelligence community, national security, Right to Privacy, Surveillance, United States

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Expert Q&A with David Aaron on FISA Section 702 Reauthorization ... - Just Security

Six months ago, FBI officials boasted that in 2022 their agents had spied on only 120,000 Americans without search warrants! Under the Constitution, that number should be ZERO.

This revelation is supposed to give members of Congress comfort that the folks we have hired to protect the Constitution are in fact doing so. In reality, the feds continue to assault and violate a core freedom protected by the Constitution the right to be left alone.

The reason for the FBI revelation is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan animosity toward its extension.

Section 702 is unconstitutional on its face as it directly contradicts the core language of the Fourth Amendment. It permits the feds to conduct warrantless surveillance on foreign persons who are either physically or digitally present in the United States and all with whom they communicate American or foreign who are located here.

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey, or your cousin in Geneva, Switzerland, calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant. And then the feds can monitor the future calls you make and texts and emails you send and receive.

The reason for the search warrant requirement is to prevent a repeat of what British agents did to the American colonists before the Revolutionary War. Then, secret British courts in London issued general warrants to British agents in America, which authorized the bearer to search wherever he wished and seize whatever he found.

When British agents used their general warrants to search colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to find who among the colonists entertained revolutionary ideas that might lead to a revolt against the king.

The existence and the enforcement of the Stamp Act proved so unpopular that Parliament rescinded it after just one year of British agents roughing up colonists in their homes. But the former bond between colonials and their king had been irreparably breached and a sea change in colonial thinking pervaded the land. The core of that sea change was not taxation without representation; it was freedom.

To the colonial mindset, freedom had one universal meaning. It meant freedom from the government from king and Parliament.

The sea change in colonial thinking resulted in an ideological welcome mat for the Declaration of Independence. When Thomas Jefferson was holed up in a Philadelphia rooming house for five days in June 1776 writing and revising the Declaration, he thought he was crafting the ideological fountainhead of a minority of landowners who despised the kings authority. Yet, within a year, farmers and artisans and laborers joined the popular and bloody revolt that ended in 1783 with freedom from England.

What about freedom from the new government here?

When the Constitution was ratified six years later, it had no amendments and made no mention of personal liberty. Five of the ratifying states had insisted upon the promise of the addition of a Bill of Rights as a pre-condition to ratification.

And so, the first task of the new Congress was to comply with that promise and craft a Bill of Rights, lest these five states secede from the new union. The colonies-become-states presumed a right to secede. They believed that what they had joined voluntarily, they could voluntarily leave. What became the Fourth Amendment protected the quintessentially American right to be left alone.

It states that the right of the people to be secure in their persons, houses, papers, and effects shall be secure and may be violated by the government only pursuant to a search warrant issued by a neutral judge and based on probable cause of crime, and the warrant must specifically describe the place to be searched or the persons or things to be seized.

There is no exception in the amendment for foreign people, bad people, dangerous people, violent people, people the government hates or fears. By the plain meaning of its English words, the amendment protects ALL people. There is no limitation in the amendment to government personnel engaged in law enforcement. The amendment restrains ALL government. The very purpose of the amendment is to present an obstacle to the government because the amendment protects the natural human right to personal privacy and autonomy from the government.

James Madison who drafted the Bill of Rights and his colleagues made a value judgment consistent with their Judeo-Christian-informed morality; namely, that natural rights trump governmental needs.

The violation of privacy is a form of government aggression. Madison knew the tendencies of government toward aggression. The Fourth Amendment was to be the bulwark against it. The people could protect themselves against private aggressors, but theyd need a clause in the supreme law of the land and independent judges to restrain government aggressors.

After 50 years of studying, teaching, writing about, judging, interpreting and just plain explaining the Constitution, I am convinced that those in government dont believe its words or accept its values. They dont feel bound by it.

They have crafted mechanisms of all sorts like Section 702 to evade and avoid it. They will claim that it impairs their duties. Yes, it does intentionally so, and in the name of personal liberty. Today, liberty is impaired for foreign persons, an immutable characteristic. Tomorrow it could be impaired for any other immutable trait. Of what value is a Constitution with congressionally crafted, politically based exceptions? None.

Section 702 expires on Dec. 31, 2023. Last week, President Joe Biden asked Congress to renew it. It should die a natural death. Paraphrasing Justice George Sutherland, if the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.

Tags: FBI, Section 702, Surveillance

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A Constitution the Government Evades - Tenth Amendment Center

The barbaric attack on Israeli civilians over the weekend by Hamas terrorists has left people wondering, as we often do after mass tragedies: How did no one see this coming? As a surprisingly sophisticated, coordinated surprise attack left nearly 1,000 people dead and countless more innocents wounded or kidnapped, anyone can recognize the massive intelligence failure without calling into question who is morally culpable for the invasion. Iran-backed militants attacked civilians from multiple points of entry, hang-gliding into a music festival and dragging the bodies of murdered women through the streets, all effectively livestreamed on the internet.

It wasnt just an intel failure on Israels part as a close ally with an intelligence presence all over the world, the United States also failed to foresee the attack. A senior U.S. military official admitted to NBC News that We were not tracking this. CIA counterterrorism veteran Marc Polymeropoulos told the outlet he was stunned that American intel agencies were caught off guard.

Intelligence operatives are fallible, yes. But instead of identifying the threat from Hamas terrorists, the Biden administration was busy sending money to their state sponsors in Iran and employing Iranian conspirators at the Pentagon.

Theres another task thats been keeping Americas so-called counterterrorism apparatus busy lately, though. Instead of focusing their efforts on actual terrorists those abroad and those doubtless infiltrating our porous southern border the Biden administration has continued, and escalated, the trend of turning our post-9/11 surveillance state against Americans, smearing them as terrorists for their political beliefs.

Just last week, Newsweek reported that the FBI is targeting Trump supporters as domestic terrorists ahead of the 2024 election. The universal line from the Biden administration is that domestic terrorism and its aliases all of which are used as code for political right-wingers are the No. 1 threat to national security. The effort to make an example out of Trump supporters who demonstrated at the Capitol on Jan. 6, 2021, is only one of numerous instances in which Democrats within and beyond intelligence agencies are working to equate domestic terrorism with their political opponents.

Two years ago, Bidens Education Department infamously planted a letter from the National School Boards Association to Attorney General Merrick Garland, urging him to target concerned parents who showed up at school board meetings to protest Democrats Covid policies and their racialist and sexually graphic curricula in public schools. The letter smeared those parents as domestic terror threats and urged the Department of Justice to wield counterterrorism laws against them, and Garland happily acted on the suggestion.

A few months later, the politicized Department of Justiceannounceda new domestic terrorism unit to deal with an elevated threat from domestic violence extremists, including those who ascribe to extremist anti-government and anti-authority ideologies.(Who knew the Founding Fathers were domestic terrorists?)

Taking things a step further, disgraced former Deputy FBI Director Andrew McCabe claimed that targeting the fringes of the right-wing movement was insufficient to catch this threat, and instead called for federal suspicion of mainstream conservatives.

In June 2021, the Biden administration released a National Strategy for Countering Domestic Terrorism. It proposed to counter domestic terrorism by addressing underlying racism and bigotry and they werent talking about the racism that led Hamas militants to slaughter Israeli civilians this past weekend and has driven violence against Israel in the region for decades. A National Terrorism Advisory System bulletin issued the same year lumped conspiracy theories on perceived election fraud and responses to anticipated restrictions relating to the increasing COVID cases in the same sentence as domestic violent extremist ideologies.

Our intelligence apparatus expends resources on things like telling Big Tech companies which free-thinking Americans social media posts to censor, as we discovered via the Twitter Files and Missouri v. Biden. Its actively researching how to most efficiently surveil what you say online. The FBI has been putting its resources to work targeting and likely infiltrating traditional Catholic congregations, and terrorizing peaceful pro-lifers like Mark Houck, a pastor who was dragged away in a surprise raid at his home in front of his family.

Its not just domestic intel agencies being wielded against Americans; the CIA did its part to help Twitter censor speech, and even solicited signatures to help falsely smear damaging reporting about the Biden family as disinformation ahead of the 2020 election. (For some reason, none of those involved are being arrested for conspiracy against voting rights.)

Across the board, weve seen the people we elected, and countless bureaucrats we did not, weaponizing supposedly counterterror laws like the Patriot Act against Americans First and Fourth Amendment freedoms (at least).

Imagine if those resources were redirected away from targeting ordinary, law-abiding Americans for their political views and aimed at stopping actual terrorists who seek to harm us and our allies. Contrary to the pretense that surveilling Americans as walking national security threats is for our own protection, our world would be a lot safer.

Elle Purnell is an assistant editor at The Federalist, and received her B.A. in government from Patrick Henry College with a minor in journalism. Follow her work on Twitter @_etreynolds.

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Imagine If Feds Hunted More Real Terrorists, Not Conservatives - The Federalist

Lake Orion Voters Could Decide Removing TIF Funding for Downtown Lake Orion

Lake Orion, MI Voters in the Village of Lake Orion have a resident-led proposal on the Nov. 7, 2023 ballot that would remove the TIF funding mechanism for the Downtown Development Authority. Oakland County Times wrote about the ballot effort, as well as what the impacts would be as far as economics and services. Check out that article HERE

Here is the official ballot language:

Lake Orion Village Adoption of Ordinance No. 36.06, which repeals Ordinance No. 36.05 of the Village of Lake Orion Ordinance No. 36.05 approved a fourth amendment to the Tax Increment Financing Plan for the Lake Orion Downtown Development Authority, originally approved in 1985, continuing its tax capture from the Village of Lake Orion and other effected taxing authorities until December 2039. Shall the Village of Lake Orion adopt Ordinance No. 36.06, which repeals Ordinance No. 36.05, and cease the capture of taxes from the Village of Lake Orion and other affected taxing authorities?

For a complete list of candidates and ballot issues, visit the Oakland County Clerks Election Page.

For Oakland County Times candidate interviews and election information visit the Oakland County Times Election Page.

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Lake Orion Voters Could Decide Removing TIF Funding for ... - Oakland County Times

An unlikely coalition of progressive and hard-right conservative lawmakers came together this year to push for overhauling a powerful government spying authority. But as the time approaches to take action, cracks are starting to show.

Republicans and Democrats who have backed each other's ideas in hearings and collaborated on working groups are starting to stake out different positions about what reforms are really needed for the program, which allows government spies to snoop on the emails and other electronic communications of foreigners abroad.

The alliance between the far-right and the far-left is a marriage of convenience, one congressional aide involved in the reauthorization discussions said. The aide, who was granted anonymity to speak candidly about sensitive internal debates, added that the two camps have major policy differences when talking specifics.

Lawmakers have until the year-end expiration of the electronic surveillance power Section 702 of the Foreign Intelligence Surveillance Act to decide whether to renew it and with what changes.

Its expected to get renewed in some form, but splits along partisan lines could sap momentum for some of the most ambitious changes privacy hawks are pursuing.

Thats good news for the Biden administration.

President Joe Biden and his team have been pushing to get Section 702 renewed with as few added restrictions as possible, arguing its wide scope is essential for protecting national security. But theyve had difficulty making that argument in the face of government reports and court rulings showing the FBI misused data collected under 702 to spy on Americans.

Any fracturing inside Congress works in the administrations favor. And progressives are starting to worry that in the push to find consensus, theyll lose out on what they see as a key reform: requiring the FBI to obtain warrants to search the database of collected emails, text messages and the like for information on Americans.

Rep.Zoe Lofgren (D-Calif.), a progressive privacy advocate, expressed wariness that the coalition between left and right would prove strong enough to push through major reforms, like the warrant requirement.

In the past, even though we've had sort of a left-right consensus on 702 reform, the national security forces always managed to derail the effort, Lofgren said. The question is, Will that happen again? And I don't know the answer to that.

Through multiple congressional hearings this year including two in the famously polarized House Judiciary Committee Republicans and Democrats have found common cause in blasting the FBI and Justice Department for abusing the FISA program.

The uncharacteristically strident calls for reform from the right traditionally the pro-law enforcement party have buoyed privacy-oriented lawmakers hopes that they finally have the support needed to pass significant changes to the 9/11-era spy program.

In particular, privacy advocates have been hoping to rally lawmakers to close what they consider a major loophole in the program: the fact that the government does not need a warrant to query the database for information on Americans.

I will only support the reauthorization of Section 702 if there are significant reforms. And that means, first and foremost, addressing the backdoor warrantless surveillance of Americans, Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee, said in an emailed statement.

The argument for the warrant has been buoyed by the release of opinions from a special court overseeing the program, which found FBI personnel misused the database to search for the names of Jan. 6 rioters, political donors to a congressional campaign and individuals who demonstrated following the murder of George Floyd.

Those searches, and others like them, violated internal FBI rules requiring that a suspect must have a likely tie to foreign intelligence information to be searched in the database.

The Justice Department and the FBI have recently cut down on those improper searches by instituting stricter rules about when analysts can access the database. They have also invited lawmakers to codify those changes into law.

But the disclosures were enough to prompt a broad cross-section of lawmakers to express interest in the idea of a warrant or even something harsher throughout the year.

How about if we just get the FBI out of the business altogether? Rep. Jim Jordan (R-Ohio), chair of the House Judiciary Committee, asked witnesses during a hearing on FISA earlier this year.

The unusually strong alliance between right and left and the specter of major changes that come with it has rattled the Biden administration in recent months.

In a sign of just how concerned it is about preserving the program as is, the White House disclosed for the first time in February and March that it uses Section 702 to combata wide spectrum of threats, including fentanyl trafficking, cyberattacks and weapons proliferation.

It has also released new statistics about the value of the program to the intelligence community and tapped officials in a swath of federal agencies to deliver speeches outlining how heavily their jobs rely on the surveillance tool.

The full-court press appears to have swayed lawmakers away from the idea of quashing the program entirely, a prospect that unnerved the White House when the debate over the spy tool began in earnest this spring.

But the White House has continued to argue that several changes championed by civil liberties groups and the warrant requirement in particular would kneecap one of its most valuable spying programs.

An independent White House intelligence panel concluded in July that cutting or severely restricting the program to better protect Americans privacy would amount to one of the worst intelligence failures of our time.

But Republican support for progressive priorities may not be as robust as privacy advocates hope or as the White House fears.

Conservatives are quietly beginning to zero in on a different set of priorities around FISA reform.

Republican skeptics of the law have grown increasingly concerned about a separate portion of the Foreign Intelligence Surveillance Act known as traditional or Title 1 FISA. And while that section of the law isnt technically up for renewal this year, they see the deadline for Section 702 as a vehicle to push through changes to it.

Traditional FISA involves the use of court orders to surveil individuals physically inside the United States. Conservatives allege that the Justice Department has abused it to unlawfully spy on allies of former President Donald Trump and in particular, former Trump campaign adviser Carter Page.

The DOJ used FISA to obtain court orders to surveil Page, orders an internal investigation found were riddled with errors. Hard-right conservatives point to the investigation as evidence of politicization within the Justice Department.

The Carter Page investigation is just one example of the FBI abusing FISA to surveil American citizens, Rep. Tom Tiffany (R-Wis.), a member of the House Judiciary Committee, said in a statement. I will be allowing FISA to sunset if we do not see significant reforms in the agency.

Conservative fixation on problems in Title I of FISA will ultimately eat away at some of the momentum behind the warrant requirement progressives have proposed, said Adam Klein, former chair of the Privacy and Civil Liberties Oversight Board.

Though some conservative have entertained the warrant requirement idea thus far, it wouldn't actually solve the problems animating most members of the Republican Conference," argued Klein, who has met with congressional staff about FISA reform.

Changes to FISA that address only Section 702 do nothing for the right, argued Stewart Baker, a former NSA general counsel who has met with lawmakers about renewing the program.

Instead, he said, conservatives want to make changes that are aimed at the perception of partisanship within the FBI and Justice Department. That could mean injunctions on domestic disinformation work by the intelligence community, stiffer penalties to discourage politically motivated leaks or limitations on how former intelligence officials can use their access to classified information to wade into political debates.

The differences between progressives and conservatives are likely to sharpen closer to the end of the year, argued Baker and Klein, when lawmakers on either side of the aisle have had more time to study up on the two portions of the notoriously arcane spy program.

As that happens, far-right lawmakers may find they have more support for changes to Title I of FISA from national security hawks in both parties and even the White House, both of which could view those fixes as more palatable than the warrant requirement.

A second congressional aide said that early support for the warrant requirement has been aided by outside civil liberties groups and that lawmakers who oppose the idea believe they have vastly understated the national security costs of the warrant, while overstating its privacy harms.

These outside groups don't have first-hand experience with the program, said the aide, who did not name any of the groups. So, they're operating off of, you know, second-, third- or fourth-degree information that can get lost in translation.

Privacy groups strongly objected to those characterizations.

All of our factual information comes from the government itself, along with other official sources such as FISA court opinions and the PCLOB report, said Liza Goitein, senior director of the Liberty & National Security Program at the Brennan Center for Justice.

The Constitution doesnt allow the government to conduct warrantless searches of Americans simply because spy agencies find that easier than getting a judges approval, added Patrick Toomey, deputy director of the ACLUs National Security Project.

A special federal court charged with overseeing the 702 program must certify on an annual basis that it is compliant with the Fourth Amendment. It has found that the government does not need to acquire an individualized warrant because U.S. data found within the repository is retrieved only as a consequence of collecting communications from targeted foreigners.

Civil liberties groups and national security-focused lawmakers disagree on whether that degree of judicial oversight offers sufficient protection to Americans. But it's an argument national security hawks are betting they can win as lawmakers start thinking more seriously about the program.

There are valid and legal reasons why the FBI should be able to access the 702 database without a warrant, the second aide argued.

When Congress returns from the August recess, lawmakers will have just four months to hash out the details of a package to renew FISA.

Much of that time will be eaten up by negotiations over funding to avoid a possible government shutdown at the end of September, disputes over a new aid package for Ukraine and ironing out the annual defense bills.

But civil liberties groups will also have a last chance to push for major changes to the 702 program and they could receive a major bump from the Privacy and Civil Liberties Oversight Board, which is expected to submit a report on Section 702 later this fall.

Because the boards mandate includes privacy protection, there is a chance it offers more support for the idea of a general warrant requirement, which the presidents intelligence panel dismissed in July as both unnecessary and counterproductive.

But whether that is enough to sway Republicans remains a different question.

The changes that would be viscerally satisfying to left and right arent the same, argued Klein, the former PCLOB chair.

The bloodless, technical fixes to strengthen compliance and transparency are important and have wide support, but it will take more to fully address the loss of trust among conservatives," he said.

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A marriage of convenience: Why the pushback against a key spy program could cave in on progressives - Yahoo News