After being ambushed by privacy activists outside a town hall in southern Connecticut last week, Rep. Jim Himes (D-CT), the ranking Democrat on the House Permanent Select Committee on Intelligence, spoke at length about the urgency of extending Section 702 of the Foreign Intelligence Surveillance Act (FISA), the warrantless spying program he has been actively lobbying Democratic colleagues to support without reforms. The 702 program is set to expire on April 20.
Himes assured protestors that “anything I said today, you can sort of check if you want.” In a press release Friday, organizers with QuitGPT and a number of Connecticut-based advocacy groups held him to it: “Unfortunately, Himes repeated several false and misleading statements about FISA, the data broker loophole, and AI surveillance.”
Their comments came just hours after a separate virtual town hall last Friday where Himes “repeated many of the same statements” about Section 702. In both instances, Himes suggested that U.S. intelligence agencies like the National Security Agency (NSA) do not purchase Americans’ commercial data through the program.
“There’s no data acquired under FISA 702 authorities that is commercial data,” he told protestors last week. “We don’t buy it through that authority.”
The NSA does indeed buy Americans’ commercial data from private companies, and it doesn’t need a warrant to do so. The agency only disclosed the nature of its commercial data purchases after Sen. Ron Wyden (D-OR), a member of the Senate Intelligence Committee who has been trying to close this loophole for years, applied political pressure. In November 2023, Wyden placed President Joe Biden’s pick to run the NSA on hold, making the nominee’s Senate confirmation contingent on the agency coming clean about its practices. The NSA resisted full transparency at first, but after stewing for about three months, it conceded.
“There is a lot of baloney out there when it comes to government surveillance,” a spokesperson for Wyden told the Prospect in an email. “Here are the facts: multiple intelligence and law enforcement agencies, including the FBI, Defense Intelligence Agency, NSA, ICE, CBP, DEA, IRS, and Secret Service have all purchased or are still purchasing Americans’ data without a warrant or any court oversight whatsoever.”
The spokesperson continued: “People who claim this isn’t happening are misinformed.”
At his virtual town hall on Friday, Himes drew sharp criticism over his comments, but appeared to double down on them when he was pressed by an attendee. “Your colleague, Ron Wyden, he confirmed outright the NSA is buying data on Americans,” the attendee said, “so are you covering for them, or do you just not know?”
Himes replied: “My job is to do oversight of the intelligence community. That is to crawl all over them and to tell them when I think what they are doing is either illegal or immoral. That’s my job. I don’t cover for anybody, full stop.”
“That’s my job, as it’s Ron Wyden’s job,” he continued. “I am not aware of any NSA purchases of U.S. person data, and because their targets, by law, are exclusively foreign, they … have no reason and no business buying American data.”
Himes also recalled privacy activists confronting him outside last week’s in-person town hall, saying “the first thing they did was hand me a flyer that said ‘Stop AI Surveillance.’” Once again, he doubled down. “[AI] has absolutely nothing to do with 702. Nothing. Full stop,” Himes said.
The Department of Justice’s National Security Division (NSD) budget justification tells a different story. NSD has “worked closely” with the intelligence community “to discuss new AI tools that are involved in processing or analyzing FISA-acquired information,” according to the spending request.
Himes is perhaps the most prominent member of the so-called “Gang of Eight,” which receives regular briefings from the executive branch on classified intelligence matters. (The Gang of Eight includes the majority and minority leaders in each chamber, along with the chair and ranking member of the House and Senate Intelligence Committees.) He recently told The Hill that if Trump ever abused the 702 program, “I would know it pretty much in real time if he did.” At the in-person town hall last week, Himes said he also sees the “long list of queries that are made of U.S. person information, and I look at that very closely.”
Despite Himes presenting himself as the congressional arbiter of the intelligence community, Congress does not have direct access to the FBI’s queries for Americans’ communications data. The Justice Department is required by law to audit these queries within 180 days, meaning that any improper searches may not be logged until months after the fact. Moreover, the last Section 702 compliance review, which saw the Justice Department and office of the Director of National Intelligence jointly examine queries made over the course of 2022, only came out last year.
When Himes spoke with the Prospect, he seemed to signal openness toward reforming the 702 program, but emphasized that its extension cannot be allowed to lapse. Conversely, privacy activists argue the window for reform is closing, and that now is the time to act.
“If Himes procrastinates until after FISA reauthorization, we don’t have a chance,” they said on Friday. “FISA reauthorization is almost certainly our only chance to close the [data broker] loophole this year.”
The intelligence community and its cronies in Congress regard FISA reauthorization as a “must-pass,” and extending it requires bipartisan support. That gives members of Congress seeking to reform the program leverage.
Whether that leverage will be enough to pass the updated Government Surveillance Reform Act (GSRA), which, among other proposed reforms, seeks to close both the data broker loophole and backdoor search loophole, has yet to be seen. Wyden introduced that bill alongside Sen. Mike Lee (R-UT) last month. The legislation has been co-sponsored by Sens. Cynthia Lummis (R-WY) and Elizabeth Warren (D-MA), and Reps. Warren Davidson (R-OH) and Zoe Lofgren (D-CA) have introduced the House version of the bill.
“The bipartisan, bicameral GSRA would end warrantless surveillance and close the data broker loophole, while preserving the surveillance authorities needed to keep our country safe,” Wyden’s spokesperson said. “Our approach shows the government doesn’t need to violate the rights of Americans to target foreign threats.”
