Civil liberties groups pushing to overhaul an anti-terror surveillance law are urging House leaders to allow votes on warrantless database searches and the government’s use of private data brokers when the law comes up for debate soon.
In a letter obtained by HuffPost, a coalition of 32 groups ranging from the liberal American Civil Liberties Union to the libertarian group FreedomWorks to the pro-privacy Electronic Privacy Information Center, fired the first shot in the newest faceoff over renewing the Foreign Intelligence Surveillance Act and its Section 702, which could come to the House floor as early as next week.
“Blocking off votes on critical issues that have been central to the past year’s debate over FISA would harm Americans’ privacy, as well as needlessly threaten Section 702’s future viability,” the groups told House Speaker Mike Johnson (R-La.) and House Democratic Leader Hakeem Jeffries (D-N.Y.). The letter was also sent to all House lawmakers.
The debate is expected to resemble the original plan for a February floor fight that never materialized. A base bill, called the Reforming Intelligence and Securing America Act, would be open to amendment on the floor, with votes on a few amendments offered by each of the warring sides — a bipartisan group of Democrats and Republicans seeking major changes to help protect Americans’ privacy, and a similarly bipartisan group favoring much smaller changes out of concern over terrorism and security.
“RISAA is carefully crafted to preserve the status quo, not to enact the serious privacy protections for which most Americans and members of Congress are calling. We therefore urge you to oppose Floor consideration of any legislation, including RISAA, that would reauthorize Section 702 without providing votes on key amendments, including those to close the backdoor search and data broker loopholes,” the coalition wrote.
Next week would be the third time since December the House will have tried to grapple with the looming expiration of Section 702, a part of FISA allowing the government to surveil foreigners outside the U.S. suspected of spying. Critics have long said the law is ripe for abuse, having been misused to allow warrantless surveillance of Americans.
In December, Congress approved an extension of Section 702 authority until April 19 as part of a larger defense policy bill instead of debating changes. In February, an effort to have the debate was derailed, in part because one of the leaders on the Republican side favoring Section 702, House Intelligence Committee Chairman Mike Turner (R-Ohio), publicly warned Russia possessed a “serious national security threat” and said President Joe Biden’s administration needed to brief Congress about it.
After a day of heated speculation, the White House said Russia had an anti-satellite weapon that was worrisome but not operational. Still, the ruckus caused by Turner’s statement and allegations that its timing was meant to undermine opponents of Section 702 were enough to convince Johnson to postpone the debate.
But that may not happen this time, as lawmakers are treating April 19 as a hard deadline.
“It’s hard to overstate the significance of the Intelligence Committee’s bad-faith efforts to stop anyone from Congress from voting for reform, and as their plans to not only undermine reform but push for more warrantless FISA surveillance are coming into view, more and more impacted communities are voicing their outrage,” said Sean Vitka, policy director for progressive group Demand Progress, one of the coalition members.
But the February experience may not keep intelligence-gathering agencies from getting to make their case to lawmakers this time. A security briefing for House members by various U.S. intel agencies has been scheduled for April 10, according to Punchbowl News.
If House Democrats hold together, Republicans with their two-seat majority would have to have almost unanimous agreement among themselves to set the terms of a floor debate and what amendments may be offered, something they have had trouble with lately.
Opponents of Section 702 accused their opponents in February of threatening to take down a floor rule rather than agree to have the debate then, a threat the anti-Section 702 coalition is now implicitly making by saying there should not be a vote unless its favored amendments are considered as part of that process.
The groups want to close a loophole they say allows agencies to commit “backdoor” searches on U.S. citizens by formulating queries for communications, such as for a specific phone number or email address, in a way that will turn up information on specific Americans, information that would otherwise require a warrant.
They also want to restrict the ability of intel and law enforcement agencies to buy information on Americans, like past location history, from private data brokers if the intelligence agencies would otherwise be prohibited from gathering the info themselves.
Over in the Senate, Sens. Mike Lee (R-Utah) and Richard Durbin (D-Ill.) recently unveiled a bill many privacy advocates say would be a compromise on both issues. It would leave database queries unrestricted but require warrants to access information when those queries turn up something.
“It would just be for those cases in which they get results and want to access those results, which is less than 2% of the time, according to the government,” said Elizabeth Goitein, senior director of the Brennan Center for Justice’s liberty and national security program.
“I do think that would be a reasonable solution in this situation,” she said.
The Durbin-Lee bill would also narrow the circumstances in which the government could buy personal data.
While it has not been introduced in the House, Goitein and Vitka said they thought the Durbin-Lee language and maybe the House Judiciary’s version of a FISA bill could get two-thirds support in the House. That could be key, as the only bills passing the House lately have been consensus bills that have avoided the rules process.
If the House can’t agree on a bill, Section 702 is set to expire on April 19, a prospect privacy advocates would be fine with but most lawmakers were unable to accept in December.
The practical deadline for coming to an agreement may not be until next April, though. That’s because the government sought an extension to keep the surveillance program intact with the special court that oversees FISA activities, effectively allowing for another year of surveillance for current investigations automatically, even if Section 702 were allowed to lapse.
“I think it would be a real mistake for Congress to treat April 2025 as the real deadline, because then we have another year of surveillance abuses and that’s just intolerable,” Goitein said.
