House panel advances FISA reform
- By Derek B. Johnson
- Nov 13, 2017
One of three bills designed to reauthorize and overhaul a controversial spying program cleared a significant procedural hurdle, as the House Judiciary Committee passed the USA Liberty Act by a 28-7 margin following a markup hearing Nov. 8.
The bill, drafted by a bipartisan group of committee members, was pitched by Chairman Bob Goodlatte (R-Va.) and others members as a "careful compromise" that balances the desires of privacy and civil liberty advocates and national security hawks. The bill attempts to rein in the incidental or backdoor collection of electronic communications of Americans under the Foreign Intelligence Surveillance Act.
In its current form, Section 702 of FISA permits the warrantless collection of communications on U.S. persons with some link to a foreign surveillance target, or the collection of communications that are merely "about" the target. Many civil libertarians and privacy advocates are looking to put new limits on how the government, particularly domestic law enforcement, queries data on Americans collected by spy agencies.
Goodlatte and ranking member Rep. John Conyers (D-Mich.) have argued that while the bill does not satisfy all of the concerns of civil liberty and privacy advocates, it represents a significant step forward in reining in post-9/11 surveillance overreach. Conyers proposed an amendment during the markup that would, he said, tighten up the language around warrant requirements to better clarify the definition of foreign intelligence purposes. It was passed through a voice vote.
However, members both on the committee and within the larger Congress remain stuck on the issue of how best to integrate warrant requirements for when the FBI and law enforcement agencies query the 702 database for information about U.S. persons. Critics have complained that while the bill does introduce a warrant requirement, it carves out an exception for "foreign intelligence purposes" that is ambiguous enough to fall victim to what Conyers referred to as "the government's more creative legal arguments."
Reform advocates have long argued that the language around warrant requirements must be airtight because intelligence and law enforcement agencies have a history of privately interpreting statutes in the broadest possible context, going well beyond what Congress or the public think the law allows for. Organizations like the American Civil Liberties Union and members of the conservative House Freedom Caucus have cited similar fears in coming out against the USA Liberty Act.
Rep. Zoe Lofgren (D-Calif.) gave voice to those concerns during the hearing, arguing that classified briefings with National Security Agency Director Mike Rogers indicated that the intelligence community is sweeping up far more American communications than the public realizes.
"'Foreign intelligence purposes' is very broad. It can include trade agreements and other issues -- it's a truckload-sized exception to the warrant requirement," Lofgren said. Some believe that this codification of the exception is actually a step backward from current law.
Further, she called the current language around warrant requirements insufficient. To illustrate her point, she revealed that in response to a year and a half of inquiries from the committee, FBI officials claimed that only one query they ran for information about U.S. persons over that timeframe returned evidence of a crime unrelated to foreign intelligence purposes.
"What that would mean, I assume, is that the FBI considered every query a foreign intelligence query, which under this act could be performed without a warrant," said Lofgren.
Lofgren and Rep. Ted Poe (R-Texas) proposed an amendment that would require more stringent warrant requirements similar to those in a competing bill, The USA Rights Act, sponsored by Sens. Ron Wyden (D-Ore.) and Rand Paul, (R-Ky.).
That amendment was defeated 21-12 after Goodlatte and Conyers came out in opposition, with both relaying their belief that the requirements would jeopardize the bill's overall chances for passage.
There's been little movement on the remaining two bills to reauthorize Section 702. The USA Rights Act remains stuck in the Senate Judiciary Committee with no current timetable set for a vote. The bill has 14 cosponsors, ranging from liberals like Sens. Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.) to rock-ribbed conservatives like Sen. Mike Lee (R-Utah), along with the support of more than 40 privacy organizations.
Still, it's not clear whether Senate Majority Leader Mitch McConnell (R-Ky.) will allow the bill to come to a floor vote if it does make it through committee. McConnell has historically been supportive of a "clean" reauthorization in past debates around 702.
Senate Intelligence Committee Chairman Richard Burr (R-N.C.) has also drafted legislation that would extend Section 702 for eight years and largely avoid the reforms included in the other two bills. The measure has the support of the White House and the intelligence community. During the Oct. 23 markup, Sen. Dianne Feinstein (D-Calif.) introduced a similar warrant requirement, but that amendment was defeated 11-4. The committee also voted down amendments by Wyden that would have formally ended "about" collection and prohibited collection of "entirely domestic" communications.
This article was updated Nov. 14.
Derek B. Johnson is a former senior staff writer at FCW.