Lawmakers in the House of Representatives are expected to vote Thursday on whether to renew a controversial surveillance power that Trump officials say is vital for protecting against terrorism and other national security threats.
The authority that is up for renewal, Title VII of the Foreign Intelligence Surveillance Act (FISA), includes Section 702, a provision that allows the government to target non-U.S. people located overseas for a foreign intelligence purpose. But sometimes Americans get swept up in that surveillance when they communicate with the foreign target, sparking concerns from privacy-minded Republicans and Democrats.
Before the Christmas recess, lawmakers, torn over how best to balance national security and privacy concerns, agreed to a short-term extension on 702 that bought them a few more weeks before the power expires. The bill set to come to the floor Thursday, as it stands before potential amendments, is something of a hybrid and incorporates provisions from a number of House bills. The legislation released Friday would reauthorize this section of FISA for six years.
“We expect Senate passage,” a spokesman for the chairman of the House Intelligence Committee, Devin Nunes, told THE WEEKLY STANDARD. “This is the product of lots of consultations with all the relevant parties in Congress.”
For one thing, the bill does not include controversial ‘unmasking’ oversight provisions seen in an earlier, pre-Christmas House Intelligence Committee (HPSCI) FISA reauthorization bill. Americans whose communications are incidentally collected will typically have their identities ‘masked’ in intelligence reports, but can be unmasked under some circumstances.
Nunes and and other Republicans on the committee have raised concerns about whether Obama administration officials improperly revealed Trump officials’ names in intelligence reports. The Republican-led unmasking oversight provisions included in the committee’s earlier FISA reauthorization bill drew the ire of Democrats on the panel, who slammed Republicans for politicizing the reauthorization.
Nunes told TWS on Monday that the unmasking issue would be “fixed administratively.” House Republicans have received assurances from the White House about the creation of a repository for the real-time review of unmasking requests. The Office of the Director of National Intelligence is also implementing new policies that will “require heightened levels of approval” for presidential transition-related unmasking requests, according to Reuters.
Outside of removing a number of controversial past provisions, the new bill makes an effort to address civil liberties concerns that have grown in intensity since the 2013 leaks by NSA contractor Edward Snowden.
There’s the so-called “backdoor search loophole,” or the government’s ability to query, or search, 702 data for information about Americans. The FBI’s potential use of that information in a domestic criminal case has raised extra concern for civil liberties advocates, who say that searching 702-acquired data for Americans’ information without a warrant is unconstitutional. Supporters of the authority counter that the FBI can search only a small slice of 702 collection, and that federal courts have ruled that the practice passes constitutional muster.
Under the bill, the FBI must obtain a warrant to view information returned in response to a non-national security search for an American’s information conducted during a “predicated criminal investigation”—unless the FBI determines “there is a reasonable belief” that the responsive information “could assist in mitigating or eliminating a threat to life or serious bodily harm.”
The FBI can use 702-acquired information about a U.S. person as criminal evidence if the bureau has obtained an order to access it, the bill says, or if the attorney general determines that the case “affects, involves, or is related to” U.S. national security. That, or if the attorney general determines that the criminal proceeding involves death, kidnapping, cybersecurity, or transnational crime, among other illicit activities.
Privacy advocates say the bill’s backdoor search provision is not as reform-oriented as it may appear.
“The warrant requirement in this bill is almost as laughable,” as the version in the previous House Intelligence Committee bill, said Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “The bill is designed to create a warrant requirement that will never apply.”
Goitein said that the bill’s requirement depends on a government determination of what is or is not a national security investigation—a determination that is “very broad.” “All they would have to say at the investigative stage, before they file charges, is some of our interest here has a national security component,” she said.
In addition, the bill says the bureau must get the order “in connection with a predicated criminal investigation,” which Goitein said really means “later-stage investigations.” This effectively means the requirement “would almost never apply,” she said, since the bureau conducts searches “the moment it receives a tip or any information” that it wants to investigate.
“The government remains free to conduct warrantless searches of 702 communications during the earlier stages of its investigations,” she said.
National security-minded experts, on the other hand, are concerned the provision could reconstruct the ‘wall’ between criminal and intelligence information sharing.
“My fear with this bill is that we are going back to this pre-9/11 mentality, where you start to build up walls between criminal investigations details and intelligence investigation details,” said Matthew Heiman, a former national security lawyer at the Department of Justice. “The more you complicate things, the more walls you build, the less likely people are to share and help connect those dots, and the more risk averse people become.”
The House legislation attempts to address another major concern for privacy-minded lawmakers: ‘abouts’ collection, when communications that mention a target are swept up in addition to those to or from a target. The NSA has for now stopped ‘abouts’ collection, but can restart it under the legislation after receiving approval from the Foreign Intelligence Surveillance Court (FISC) and submitting a range of documents to congressional committees at least 30 days before restarting ‘abouts.’
Privacy advocates have argued for a codified end to ‘abouts’ collection, which the NSA said it temporarily stopped in April after the discovery of compliance violations. This bill, Goitein said, effectively “authorizes abouts collection.”
“It requires the intelligence community to give Congress 30 days notice before it restarts abouts collection,” Goitein said. “The fiction here is that Congress would somehow be able to act within 30 days to prevent it.”
The bill also ramps up the penalty for classified leaks from one year to five years, and requires the inspector general to report to congressional committees on the FBI’s implementation and interpretation of 702 search procedures.
Lawmakers have already offered an assortment of amendments to the bill, including one by libertarian Republican Justin Amash to replace the bill with the USA Rights Act, a bill also backed by Senators Rand Paul and Ron Wyden.
