U.S. lawmakers shouldn’t forget about surveillance reform

These are hectic days in Washington, with deadlines looming for a budget deal, an immigration fix, even a new presidential awards show. But one issue deserves more attention: Unless Congress acts by Jan. 19, U.S. intelligence agencies will lose a powerful tool. That would be a dangerous mistake.

Under Section 702 of the Foreign Intelligence Surveillance Act, the National Security Agency can monitor the communications of non-Americans overseas. This is a vital authority: An independent review in 2014 found that it had played a key role in dozens of counter-terrorism investigations, led to more than 100 arrests, and proved “highly valuable” in countering weapons proliferation and advancing foreign-policy goals.

Moreover, Section 702 differs from the NSA’s more controversial efforts in important respects. It exclusively targets foreign intelligence, is subject to rigorous oversight and enjoys broad bipartisan support. Federal courts have repeatedly affirmed that it is being used lawfully, while intelligence agencies say its renewal is their top legislative priority. So what’s the holdup? One aspect of the program is proving especially contentious. Under Section 702, innocent Americans may have data about them swept up if they’ve been in contact with an overseas target or have been discussed in the target’s communications. Although that data is heavily regulated, it is stored in databases that law enforcement can get access to under certain circumstances — including during a domestic criminal investigation.

How to limit that access is now the subject of intense debate. On one hand, preventing investigators from viewing data that the government has lawfully collected seems illogical and could impede their work. On the other, the U.S. has developed a robust system of rules protecting its citizens from undue government snooping, and this program could potentially circumvent them.

Reasonable people may disagree. But on balance, if investigators want to review the content of a citizen’s communications obtained through this program as part of a criminal inquiry — rather than a national security or intelligence probe — they should obtain a court order, just as the Fourth Amendment requires in other instances. In renewing this authority, Congress should make that requirement explicit, while including clearly worded exceptions for emergencies.

Although the practical effect of this reform would likely be limited — in all of 2016, the FBI reviewed Section 702 data only once for non-national-security reasons — the principle is worth defending. Requiring a warrant would foreclose an avenue for potential misuse of a potent surveillance program. And by mitigating civil-liberties concerns, it would also shore up political support for a crucial national-security tool. Those are goals that pretty much everyone should share, even at a polarized moment in Washington.

This editorial first appeared on Bloomberg View.