Surveillance

Congress Mulls Passing Most Intrusive Federal Surveillance Bill Available (Update: Bill Is Dead 'For Now')

This FISA renewal bill would essentially gut the Fourth Amendment.

|


NSA
Badboo / Dreamstime.com

Today the House may vote to renew the authority of the FBI and National Security Agency (NSA) to engage in unwarranted surveillance and codify its use against Americans.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments expires at the end of the year. The regulations are used by federal intelligence agencies to snoop on foreign targets, secretly and without warrants.

It turns out the feds have also been using Section 702 to snoop on communications by Americans here on American soil to fight domestic crimes, all without getting a warrant as the Fourth Amendment requires. So as the clock ticks down, privacy-minded activists and legislators have been working to demand changes to Section 702 before renewing it to guarantee that the FBI and NSA get warrants in order to collect, review, or use as evidence communications and data from Americans for domestic purposes.

No dice. At least not yet. Last night House leaders scheduled for a vote the FISA Amendments Reauthorization Act of 2017, H.R. 4478. This, among the proposed bills to renew Section 702, is the worst of the lot, hammered out by the intelligence committees of both the House and the Senate.

Like many bad laws, it does the opposite of what its promoters claim it does. It "reforms" Section 702 by essentially codifying into law some of the worst ways it has been used. The two biggest problems with the law:

  • Rather than requiring the FBI and NSA to get warrants to collect and use communications from Americans, it authorizes this snooping for a whole host of domestic crimes—any crime involving death, kidnapping, serious bodily injury, crimes against kids, transnational crimes, and even computer fraud. All without warrants. The law says that the FBI "may apply" for a court order to get access but it's not mandatory. In addition, the attorney general has the authority to decide whether the crime being investigated falls under the many warrant exceptions and that decision is explicitly exempt from judicial review.
  • The law will eventually allow for the return of "about" searches. These controversial searches had been used by intelligence officials to collect and access communications that were merely "about" a subject of surveillance, not just to or from that target. These searches were halted earlier in the year after it became clear that the NSA was collecting all sorts of communications it did not have the authority to access. This bill will allow the FBI and NSA to restart "about" searches if they submit a report to the two congressional intelligence committees first and subject themselves to a 30-day review period.

Two members of the House's Intelligence Committee, Jackie Speier (D-Calif.) and Denny Heck (D-Wash.) wrote their opposition to the bill but were outvoted. Speier, who voted against renewing Section 702 last time it was scheduled to sunset in 2012, warned:

"Since that time, significant numbers of Americans have been improperly swept up in surveillance activities that the law says must not target Americans. This improperly obtained information is retained for years. It has been used in court against Americans charged with crimes that have nothing to do with national security, with no warrants and without the required notifications to the defense. The government selectively publicizes what it calls Section 702 successes, but has defied Congress by refusing [to] share information on how many Americans are impacted by Section 702 failures. The checks and balances built into the system are insufficient: A rotating cast of federal oversight judges are expected to grapple with highly technical aspects of electronic surveillance, outmatched by an army of expert government lawyers.

The only good news about this bill is that it's not a permanent renewal. Under this bill, Section 702 will be set to expire at the end of 2021.

Privacy rights groups are mobilizing to try to get supporters to call their members of Congress to oppose the bill's passage. Expect an update if and when this bill is voted on. The House Rules Committee will meet at 4 p.m. today to discuss the bill.

Update: Rep. Justin Amash (R-Mich.) tweets:

Sen. Rand Paul (R-Ky.) warns of a possible filibuster:

Expect to hear others weigh in.

BIG UPDATE: Bloomberg's Congressional correspondent says this bill does not have the votes it needs to pass.

If he's correct this then pushes the battle back to a space where they'll attempt to squeeze it into a spending bill. But we don't know what that bill will look like exactly yet.

House Intelligence Committee Chair Devin Nunes confirms this bill is not going to pass today, as-is:

That "for now" should be seen as a a potential warning that this could end up in an end-of-year, must-pass, continuing resolution, so keep your eyes peeled.

Stick a fork in it … for today anyway: