Rep. Warren Davidson Proposes Privacy Amendment to FISA Reauthorization, Setting Up Clash With Speaker Johnson Over Surveillance Reform

Rep. Warren Davidson (R-OH) announced he would introduce an amendment to the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) that would prohibit law enforcement and intelligence agencies from purchasing Americans’ personal data from third-party data brokers without a warrant. The move places Davidson at odds with House Speaker Mike Johnson (R-LA), who has resisted more sweeping reform efforts and pushed for a cleaner reauthorization of the surveillance authority that civil liberties advocates across the political spectrum have long criticized.

The debate over Section 702 reauthorization has become one of the most consequential privacy battles in Congress in recent years. Section 702, originally enacted as part of the FISA Amendments Act of 2008, permits the National Security Agency (NSA) and other intelligence agencies to collect the communications of non-U.S. persons located outside the country for foreign intelligence purposes. However, this surveillance inevitably sweeps up communications involving American citizens — so-called “incidental collection” — and critics argue that the FBI has routinely searched this database using queries tied to Americans, effectively conducting warrantless surveillance of U.S. persons. A declassified Foreign Intelligence Surveillance Court opinion revealed that the FBI conducted as many as 278,000 queries of the Section 702 database using U.S. person identifiers in a single year, a figure that alarmed members of Congress on both sides of the aisle.

Davidson’s proposed amendment targets an increasingly scrutinized practice: the government’s purchase of commercially available data from private data brokers. A landmark 2023 report commissioned by the Office of the Director of National Intelligence (ODNI) acknowledged that intelligence agencies acquire vast amounts of commercially available information (CAI) about Americans, including geolocation data harvested from smartphone apps, internet browsing records, and other digital footprints. Privacy advocates have described this practice as a “Fourth Amendment end-run,” arguing that agencies are effectively buying information they would otherwise need a warrant to obtain. The Supreme Court’s 2018 ruling in Carpenter v. United States established that the government generally needs a warrant to access historical cell-site location information, but that ruling did not explicitly address data that is commercially purchased rather than compelled from a provider. This legal gray area is precisely what Davidson’s amendment seeks to close.

Speaker Johnson’s resistance to attaching reform amendments to the reauthorization reflects a broader tension within the Republican conference — and indeed within Congress as a whole — between national security hawks who view Section 702 as an indispensable counterterrorism and counterintelligence tool and a growing coalition of civil liberties advocates who see unchecked surveillance authority as a threat to constitutional rights. Intelligence officials have credited Section 702 with helping to disrupt terrorist plots, track foreign cyber threats, and identify espionage operations. Former NSA Director Paul Nakasone once called it the agency’s most important authority. But the authority’s critics note that its scope has expanded far beyond its original counterterrorism mandate and that compliance violations — including improper queries by FBI personnel — have been documented repeatedly by the FISA Court.

The path forward for Davidson’s amendment remains uncertain. House leadership controls which amendments reach the floor for a vote, and Speaker Johnson’s opposition to significant reform provisions could prevent the privacy measure from receiving consideration. However, the amendment could draw support from an unusual coalition of libertarian-leaning Republicans, progressive Democrats, and privacy-focused centrists who have increasingly found common ground on surveillance issues. The outcome will likely depend on whether enough members are willing to condition their support for reauthorization on the inclusion of meaningful privacy protections — or whether national security arguments ultimately prevail. Observers will be watching closely to see if Davidson’s proposal gains enough traction to force leadership’s hand, potentially shaping the future of digital privacy protections for millions of Americans.