S-4998-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Rand Paul (R-KY)
What it does
The bill would amend the Foreign Intelligence Surveillance Act (FISA) to bar officers from requesting, and the FISA Court from ordering, electronic surveillance, physical searches, pen registers, trap-and-trace devices, tangible-things orders, or targeting aimed at a U.S. person. It would bar queries of Section 702 data using search terms associated with a U.S. person. It would also bar use of information on a U.S. person acquired or derived under FISA or Executive Order 12333 as evidence against that person in any criminal, civil, or administrative proceeding or investigation, while letting the person (an "aggrieved person") use it. For targets who are U.S. persons, ordinary statutes and the Federal Rules of Criminal Procedure would be the exclusive means of acquisition under EO 12333, and queries of a U.S. person's data under EO 12333 would be barred. The bill states it does not abrogate Supreme Court exceptions to the Fourth Amendment warrant requirement, including exigent circumstances.
Who benefits
U.S. citizens and lawful permanent residents whose communications or records might otherwise be collected, searched, or used against them. Defendants and civil or administrative parties who would be able to exclude derived surveillance information. Privacy and civil liberties organizations, journalists, and activists who say they are concerned about being swept into surveillance. Aggrieved U.S. persons who could still use the information themselves.
Who is hurt
Intelligence agencies such as the FBI, NSA, and CIA, which would lose the ability to target or query U.S. persons under FISA and EO 12333. Counterterrorism and counterintelligence investigators who could face gaps when a U.S. person is linked to a foreign threat. Prosecutors and civil or administrative enforcers who could not use derived evidence, including evidence that would inevitably have been discovered. The FISA Court, whose role over U.S. person cases would shrink. Victims of crimes where excluded evidence might weaken a case.
Supporters argue
Supporters argue the bill restores the Fourth Amendment's warrant protection by routing all surveillance of Americans through ordinary criminal-law procedures with judicial review. They contend that repeated documented compliance violations in FBI queries of Section 702 data, reported by the FISA Court and the Justice Department, show that query rules alone have not prevented warrantless searches of Americans. They argue the broad definition of "derived" evidence closes loopholes that let agencies launder foreign-intelligence collection into domestic cases.
Opponents argue
Opponents argue the bill would blind intelligence agencies to foreign threats whenever a U.S. person is involved, including Americans working with foreign terrorists or spies. They contend Section 702 queries of U.S. person identifiers have helped detect plots and cyber intrusions, and that a flat ban, with no warrant pathway, removes tools that FISA court review and the 2024 reauthorization's reforms already regulate. They argue the broad ban on derived evidence, even where discovery was inevitable, could undermine prosecutions and national security cases.
Constitutional context
The Fourth Amendment's protection against unreasonable searches governs, with Katz v. United States (1967) establishing privacy expectations in communications and United States v. U.S. District Court (Keith) (1972) requiring warrants for domestic security surveillance. Courts have not settled whether the foreign intelligence exception to the warrant requirement covers incidental or queried collection of Americans' communications, and Carpenter v. United States (2018) extended warrant protection to some digital records. Congress's Article I powers and its role in regulating executive intelligence activity, along with Youngstown's framework, also apply to the limits on EO 12333.
Checks and balances
The bill would shift power toward Congress and the courts by narrowing executive-branch intelligence collection authority and the FISA Court's role; existing checks include congressional oversight, FISA Court review, and judicial review of evidence in individual cases.
Historical precedent
Congress enacted FISA in 1978 after the Church Committee findings on domestic surveillance, and has amended it repeatedly, including the USA FREEDOM Act (2015) and the 2024 Section 702 reauthorization (RISAA), while earlier proposals to require warrants for U.S. person queries have been debated but not enacted.