The fight over a key surveillance authority is pitting House committees against each other and fueling intraparty tension, as lawmakers dive into the debate over the power’s renewal this week.
The authority, known as Title VII of the Foreign Intelligence Surveillance Act (FISA), was due for reauthorization in late December—but Congress passed a short term pre-Christmas extension, giving themselves more time before the power expires.
The debate over national security and civil liberties is coming to a head this week, as a bill backed by the heads of the House Intelligence Committee (HPSCI) is expected on the House floor. Its supporters say it strikes a fair balance on a number of civil liberties concerns that have intensified since the 2013 leaks by former NSA contractor Edward Snowden. The bill’s critics, on the other hand, describe the proposed reforms as surface-level changes without substance—and are pushing for an amendment.
“This is a responsible compromise between those who would say we ought to have a clean reauthorization and those that say we shouldn’t be doing queries of U.S. persons under any circumstances,” Adam Schiff, the top Democrat on the House intelligence panel, said Tuesday during a lengthy Rules Committee hearing. House Intelligence Committee chairman Devin Nunes said that the bill has the support of the Trump administration.
The leaders of the Senate Intelligence Committee have also signaled openness to the proposed House FISA bill. “There’s every reason to believe that we will re-authorize 702, and it will mirror, probably, what they’ve taken up,” Senate Intelligence Committee chairman Richard Burr told TWS on Tuesday, referring to the pending House legislation.
The most controversial portion of FISA Title VII, called Section 702, allows the government to conduct surveillance on foreigners outside the U.S. for a foreign intelligence purpose. But Americans’ communications can get swept up in this surveillance when they talk to a foreign target, sparking concern for civil liberties advocates about what the government then does with that data, including the ability to query, or search it.
New York congressman Jerry Nadler, the top Democrat on the Judiciary committee, on Tuesday said the HPSCI-backed bill that is headed to the floor “does not include meaningful reform” but is being “sold as a reform bill.”
The Judiciary committee, he noted, has primary jurisdiction over FISA. But the lawmakers who crafted the proposed bill didn’t consult with that panel, Nadler said. “It was drafted without any input from the Judiciary committee, Democrats or Republicans.” House Judiciary members have introduced a different FISA reauthorization bill that goes further in terms of reforms but hasn’t completely satisfied civil liberties demands.
Nadler criticized the HPSCI-backed bill for failing to adequately address a number of privacy concerns. For one, he said, it features a warrant “‘requirement’” that is filled with loopholes and exceptions. Privacy advocates have said the government should obtain a warrant before searching 702 databases for Americans’ information, and have raised extra concern about the prospect of the FBI conducting such searches for criminal, rather than national security, purposes.
The HPSCI-backed bill requires the FBI to obtain a court order before viewing Americans’ information in a non-foreign intelligence search, conducted “in connection with” a later-stage, or predicated, criminal investigation. It allows investigators to view Americans’ information without a court order before opening a probe. But it does not allow the FBI to use this information as evidence against an American in a criminal case without a court order to access it, or without other approval from the attorney general.
“This warrant ‘requirement’ applies only to fully-predicated official investigations, and not to the hundreds of thousands of searches the FBI runs every day to track down a lead or check out a tip,” Nadler said.
“In 2016, there was only one case where there was a query unrelated to a national security case and the evidence was actually used,” Schiff countered on Tuesday. “We’re not talking about a tremendous number of national security cases.”
Nadler raised another objection: the HPSCI-backed bill, he said, codifies a controversial form of collection temporarily stopped by the NSA known as “abouts” collection. “Abouts” collection occurs when communications that mention a target—the surveillance includes information about an individual—are swept up in addition to those to or from a target. Privacy-minded lawmakers have advocated for codifying an end to “abouts.”
“I cannot support this bill without amendment,” Nadler said. “I will urge all my colleagues to oppose it as well unless one of these amendments . . . is adopted.”
An amendment offered by Republican congressman Justin Amash survived the rules committee hearing Tuesday. The House Freedom Caucus declared its support for it, underscoring the splintering inside the GOP on the surveillance authority.
The Amash amendment would replace the text of the HPSCI-backed bill with that of the USA RIGHTS Act, introduced in the Senate by Kentucky senator Rand Paul and Oregon senator Ron Wyden. It would require the government to obtain a warrant before searching 702 data for information about Americans. The bill also “prohibits the government from collecting communications that it knows are fully domestic,” Amash said.
The Michigan congressman slammed the proposed FISA reauthorization bill, describing its warrant requirement as a farce.
“It attempts to present a warrant requirement on its face to provide people an opportunity to say they voted for something with a warrant requirement,” he said. “But the warrant requirement, in fact, is not a warrant requirement, it would operate in very limited circumstances.”
“What this [amendment] really adds that’s important is that warrant requirement to search on Americans,” he said.
But a contingent of House Republicans, with Nunes at the fore, have rejected the Amash amendment.
“A vote for the amendment is a vote to kill Section 702, simple as that,” a spokesman for Nunes told TWS. “It’s a reckless amendment advanced for ideological purposes at the expense of Americans’ security.”
Opponents of the USA RIGHTS Act especially object to a stringent FBI warrant requirement for U.S. person searches, arguing that it would resurrect the wall between law enforcement and intelligence collection.
“It’s hugely important that all of us here in this body remember and recognize that we will be held accountable if we end up in a situation again where we have put those walls back up, where we have made it tougher for law enforcement, for our intelligence community to connect the dots,” Wyoming congressman Liz Cheney said during the rules hearing.
