Back in December, lawmakers put off the long-term reauthorization of Title VII of the Foreign Intelligence Surveillance Act, a powerful surveillance authority, amid a pre-Christmas legislative whirlwind. Now the House and Senate have until January 19 to agree on a reauthorization bill that satisfies both privacy advocates and national security-focused lawmakers who want the legislation to maintain its muscle.
The most controversial provision of FISA, Section 702, allows the government to collect communications to or from a foreign person located outside the United States for foreign intelligence purposes. But sometimes U.S. persons’ communications get incidentally swept up under the authority, despite its overseas mandate.
The criticisms at play have only been building since the 2013 leaks by former NSA contractor Edward Snowden—making the path to congressional compromise a rocky one. Trump administration officials, meanwhile, have implored lawmakers to pass a ‘clean’ or unchanged FISA reauthorization. They’ve pointed to the authority’s effectiveness in detecting and stopping terror plots and have described the authority as the “crown jewels” of the intelligence community.
Below are some of the major options that have been proposed for reauthorizing 702.
1. Senate Intelligence Committee
This legislation, which passed the committee 12-3 in October, extends 702 through to 2025. It attempts to address a central civil liberties concern known as the ‘backdoor search loophole,’ or the government’s ability to query, or search, 702 data for information about Americans. The FBI’s ability to use that data in a domestic criminal case has raised extra concern for privacy advocates, who say that searching 702-acquired data for Americans’ information without a warrant is unconstitutional. Supporters counter that the FBI has access only to a very small slice of 702 information.
The Senate legislation gives the FBI one business day to submit any 702 data query that returns information concerning “a known U.S. person” to the secretive Foreign Intelligence Surveillance Court (FISC). The FISC will then review the FBI’s justification for the query and whether the query is consistent with the Fourth Amendment. If the FISC says it’s not, the government can’t use the information in court. Critics have countered that the FISC has already ruled that such queries are lawful, so this review would “offer no protection,” and that the measure doesn’t make mention of CIA or NSA searches.
The Senate bill also addresses a controversial form of collection that the NSA has for now stopped, known as “abouts,” where communications that mention a target are swept up in addition to those to or from a target. The legislation codifies the ban, but lays out a procedure for the intelligence community to resume “abouts” collection.
The bill’s closed-session markup has spurred criticism from civil liberties lawmakers and organizations.
“There has not been a Senate debate on 702,” said Neema Singh Guliani, legislative counsel with the American Civil Liberties Union. “There has been no effort to put the legislation on the floor and allow for open debate and positive reform amendments.”
Republican supporters of the bill say it’s the most likely to pass the Senate—if it gets the debate it needs.
“This bill, with a few tweaks has the best chance of garnering 60 votes and being sent to the House,” a GOP aide told TWS. “That said, this will likely require a week or so of floor time and the 19th (expiration) is quickly approaching.”
2. House Intelligence Committee
The House Intelligence bill features a few differences from the Senate version, and has been mired in politically charged disputes over alleged Obama-era surveillance abuses. It passed the committee 13-8 in mid-December, with committee Democrats voting against the legislation. Days later, a planned vote on the bill was postponed amid pushback from libertarian-leaning Republicans in the House and Democrats on the intelligence panel.
Some Democrats criticized Republicans for politicizing the reauthorization by including so-called ‘unmasking’ oversight provisions. Americans whose communications are incidentally collected will typically have their identities ‘masked’ in intelligence reports. “This is all in service of the utter B.S. that there was improper unmasking by the Obama administration,” Connecticut congressman Jim Himes told Politico.
The panel’s chairman, Devin Nunes, and other Republicans on the committee have raised concerns that Obama administration officials improperly revealed Trump officials’ names in intelligence reports. The House bill features new procedures related to unmasking, including an “elevated review” for unmasking requests related to transition teams and a requirement that the person making an unmasking request provide a “fact-based justification” for doing so.
The House bill also offers an alternate solution for the “backdoor search” issue: it gives the FBI the option to get a court order to access information about U.S. persons collected under section 702 in a criminal probe. If the bureau gets that early approval, it can use the communication in a criminal case.
“Should the FBI opt not to apply for an order, or if the FISC denies such an application, prosecutors thereafter will be precluded from using the query results in evidence against the United States person in any criminal proceeding, subject to exceptions,” reads a report accompanying the legislation. Those exceptions include an attorney general determination that the criminal case affects national security, or that it involves “extremely serious conduct.”
And, like the Senate bill, the House bill lays out a procedure to restart “abouts” collection with FISC approval and a congressional review period.
Privacy advocates have raised strong objections to the first section of the House Intelligence bill, which they say greatly expands the FISA surveillance mandate. This section modifies the definition of those that may be targeted under FISA, “foreign power” and “agent of a foreign power,” to take into account non-state actors engaged in malicious cyber activity.
The ACLU’s Guliani says the new language would expand the definition in ways that would allow the government to target “Americans and people located in the U.S. who are not associated with a terrorist organization.”
3. USA Liberty Act: House Judiciary Committee
This bill, which passed the committee 27-8 in November, has received the least resistance from civil liberties advocates of those mentioned here. It requires government agencies to get a probable cause-based order to view the content of responsive U.S.-person information when conducting a search “for evidence of a crime,” with some exceptions. This requirement does not apply to searches for national security purposes.
But the warrant requirement has met resistance from lawmakers and officials who say it could resurrect the “wall” between law enforcement and intelligence agencies that “led to the devastating attacks on the United States on 9/11.”
“The danger of obscuring FBI access to Section 702 information is plain: As the lead domestic law enforcement agency charged with handling threats to national security of the United States, only the FBI is positioned to use incidentally intercepted information to prevent an attack on the homeland,” writes Shreve Ariail, a senior federal prosecutor on leave from the Justice Department.
Outside of addressing the backdoor issue, the Liberty Act also codifies the end of “abouts” collection for six years, includes additional oversight mechanisms for unmasking, such as mandated reporting requirements on the number of unmasking requests that involve U.S. persons, and enhances the penalty for leaks of classified information.
A GOP House Judiciary Committee aide told TWS that the Liberty Act “is the only bill that has been introduced that would overwhelmingly pass the House of Representatives.”
