When the House passed legislation to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) in April, it included a new provision that Senator Ron Wyden described as “one of the most dramatic and terrifying expansions of government surveillance authority in history.” Concern over the provision mounted in the Senate and threatened to derail the law’s renewal. Anxious to secure reauthorization before Section 702 expired, the chairman of the Senate Select Committee on Intelligence (SSCI), Senator Mark Warner, promised to work with other senators to narrow the provision in subsequent legislation.

To his credit, Senator Warner has made good on that promise; but the cure that SSCI has chosen is nearly as bad as the disease. The committee has created a dangerous new form of “secret law,” in which the legal parameters for surveillance—rules that bind not only the government, but private parties—are themselves classified. There is a much better solution available: Congress can legislate both responsibly and openly, as long as the administration declassifies certain information that is already in the public domain.

Archived at https://web.archive.org/web/20240614115258/https://www.justsecurity.org/96638/secret-law-overbroad-surveillance-authority/