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Despite House Democratic leadership’s plans to pass the Foreign Intelligence Surveillance Act (FISA) reauthorization the Senate sent back to the House earlier this month, plans for a vote last week were scrapped when the coalition that made possible passage of substantially the same bill in March fell apart. Instead, the House voted for a motion to disagree with the Senate’s amendments, to request a conference, and to appoint conferees. It remains to be seen whether the Senate opts to go to conference with the House, but a statement from a spokesperson for the Senate Majority Leader suggested he would support doing so. In the meantime, intelligence and law enforcement agencies cannot use the authorities the bill would renew and reform for they expired on 15 March except for investigations that started before that date.
At week’s beginning, it appeared as if the House would bring the amended “USA FREEDOM Reauthorization Act of 2020” (H.R. 6172) to the floor and possibly take a run at adding language that barely failed to get added during debate in the Senate that would further pare back the ability of federal law enforcement agencies to use the FISA process for surveillance. However, the Trump Administration more forcefully stated its objections to the amended bill, including a veto threat issued via Twitter, that caused Republican support for the bill to cave, and with it the chances of passage, for Republican votes were needed to pass the bill in the first place. Consequently, House Democratic Leadership explored the possibility of a clean vote on the Senate-amended bill, with the House Rules Committee reporting a rule for debate, but this effort was also scuttled as there were not the votes for passage of the bill, sending it to the White House. Instead, House Democratic Leadership opted to go to conference committee, which succeeded in a 284-122 proxy vote, one of the first taken under the new procedure. Thereafter, the House named the following conferees: House Judiciary Committee Chair Jerrold Nadler (D-NY) and Ranking Member Jim Jordan (R-OH); House Intelligence Committee Chair Adam Schiff (D-CA) and Ranking Member Devin Nunes (R-CA) and Representative Zoe Lofgren (D-CA).
| House Democratic plans on the FISA reauthorization went from amendment to passing the bill the Senate passed to requesting a conference after the Democratic-Republican coalition that got the bill out of the House in March crumbled. |
As noted, this week, the Trump Administration’s opposition has stiffened with the President getting on the field via Twitter, the Department of Justice (DOJ) publicly stating its opposition, and House Republican leadership urging its Members to vote no on H.R.6172. Moreover, progressive Democrats and allied advocacy groups were pushing House Democratic Leadership to adopt provisions blocking the collection and surveillance of web browsing and search engine history under Section 215. Also, some House Democrats had announced their intention to vote against H.R. 6172 regardless of whether the Section 215 narrowing was added, and so it was not clear the Speaker had the votes to pass a bill the President had vowed to veto anyway.
On 26 May, President Donald Trump tweeted “I hope all Republican House Members vote NO on FISA until such time as our Country is able to determine how and why the greatest political, criminal, and subversive scandal in USA history took place!” On 27 May, Trump tweeted
If the FISA Bill is passed tonight on the House floor, I will quickly VETO it. Our Country has just suffered through the greatest political crime in its history. The massive abuse of FISA was a big part of it!
Also on 27 May, Assistant Attorney General Stephen Boyd released the following statement on H.R.6172:
The Department worked closely with House leaders on both sides of the aisle to draft legislation to reauthorize three national security authorities in the U.S.A. Freedom Act while also imposing reforms to other aspects of FISA designed to address issues identified by the DOJ Inspector General. Although that legislation was approved with a large, bipartisan House majority, the Senate thereafter made significant changes that the Department opposed because they would unacceptably impair our ability to pursue terrorists and spies. We have proposed specific fixes to the most significant problems created by the changes the Senate made. Instead of addressing those issues, the House is now poised to further amend the legislation in a manner that will weaken national security tools while doing nothing to address the abuses identified by the DOJ Inspector General.
Accordingly, the Department opposes the Senate-passed bill in its current form and also opposes the Lofgren amendment in the House. Given the cumulative negative effect of these legislative changes on the Department’s ability to identify and track terrorists and spies, the Department must oppose the legislation now under consideration in the House. If passed, the Attorney General would recommend that the President veto the legislation.
And yet this week, the head of the DOJ’s National Security Division John Demers said there is no pressing need for reauthorization at this time. He remarked in an interview:
We’re going to have to look at where we can fill in the gaps using criminal tools. They’re not perfect. Foreign partners are not crazy when we use their information as the basis of criminal tools, because we don’t have the same protections that we do to protect underlying information as we do on the national security side. We are going to do the best we can to fill those holes and keep those investigations going.
Two weeks ago, following Senate amendment and passage of H.R.6172, a DOJ spokesperson said of the bill, it “would unacceptably degrade our ability to conduct surveillance of terrorists, spies and other national security threats.”
Early in the week, Representatives Zoe Lofgren (D-CA) and Warren Davidson (R-OH) submitted an amendment along the lines of the language Senators Ron Wyden (D-OR) and Steve Daines (R-MT) that the Senate rejected by one vote to bar the collection of web browsing and internet search history via a FISA order under Section 215. Lofgren and Davidson had negotiated with other House Democratic stakeholders on language acceptable to them.
Regarding their amendment, in their press release, Lofgren and Davidson claimed “[t]he amendment – which is supported by Reps. Adam Schiff, Chair of the House Permanent Select Committee on Intelligence, and Jerrold Nadler, Chair of the House Judiciary Committee – is an outright prohibition: the government will not be able to use Section 215 to collect the websites that a U.S. person visits, the videos that a U.S. person watches, or the search queries that a U.S. person makes…[and] [s]pecifically:
- If the government is not sure if you’re a U.S. person, but you could be, the government cannot get your internet activity without a Title I FISA warrant.
- If the government wants to order a service provider to produce a list of everyone who has visited a particular website, watched a particular video, or made a particular search query: the government cannot make that order unless it can guarantee that no U.S. persons’ IP addresses, device identifiers, or other identifiers will be disclosed to the government.
- This amendment does not allow for the incidental collection of U.S. persons’ web browsing or search information when the target is a specific-selection term that would or could produce such information.
- This prohibition is a strict liability-type provision. (It isn’t a knowledge standard or a reasonable-belief standard. An order must not result in the production of a U.S. person’s web browsing or search information.)
- If the order would or could result in the production of a U.S. person’s web browsing or search information, the government cannot order it without a Title I FISA warrant that must be narrowly tailored toward the subject of the warrant.
It appeared this amendment would be made in order during debate, but opposition from both the left and right in the House and among stakeholders made this untenable. The fact that the Lofgren/Davidson amendment was narrower in that it would only provide this protection to people in the United States whereas the Wyden/Daines amendment would have outright barred the practice under FISA led to opposition on the left. Early on 27 May, Wyden supported this language, but when House Intelligence Committee Chair Adam Schiff (D-CA) suggested that intelligence agencies could continue to collect web browsing and search histories of Americans, Wyden withdrew his support. Thereafter, House Democratic Leadership ultimately decided against allowing this amendment to have a vote.
In December, Lofgren and Davidson were among the Members who introduced the “Safeguarding Americans’ Private Records Act of 2020” (H.R.5675/S.3242) in both chambers. In their press release, the sponsors claimed “[t]he bill includes a host of reforms:
- It would permanently end the flawed phone surveillance program, which secretly scooped up Americans’ telephone records for years.
- It would close loopholes and prohibit secret interpretation of the law, like those that led to unconstitutional warrantless surveillance programs.
- It would prohibit warrantless collection of geolocation information by intelligence agencies.
- It would respond to issues raised by the Inspector General’s office by ensuring independent attorneys, known as amici, have access to all documents, records and proceedings of Foreign Intelligence Surveillance Court, to provide more oversight and transparency.
Notably, beyond revoking the authority for the NSA to restart the telephone collection program, the bill would also exclude from the definition of “tangible thing” in the Section 215 business records exception: Cell site location information, Global positioning system information, Internet website browsing information, and Internet search history information. The bill also contains language that would limit the use of Section 215 to only counterterrorism and foreign intelligence matters and limit the retention of any such material to three years unless it includes foreign intelligence. Moreover, the bill would increase the justification requirements the government must meet before a nondisclosure requirement (aka gag order) can be placed on a company subject to a Section 215 order.
Two week ago, the Senate amended and passed H.R. 6172 by an 80-16 vote. Consideration of the bill was stalled in March when some Senators pushed for amendments, a demand to which the Senate Majority Leader finally agreed, provided these amendments would need 60 votes to be adopted. Consequently, once COVID-19 legislation had been considered, the Senate returned to H.R.6172, and debated and voted upon three amendments, one of which was agreed to. Senators Pat Leahy (D-VT) and Mike Lee’s (R-UT) amendment to expand the amicus process during the FISA process prevailed by a 77-19 vote. In an op-ed in The Washington Post, Leahy and Lee argued
- The key to our proposal is to substantially strengthen a program that currently allows FISA judges, in very limited circumstances, to appoint outside legal scholars — called “amici”— to independently analyze FBI surveillance requests that are particularly sensitive. Out of thousands of cases, FISA judges have called for such an independent review by a court-appointed “amicus” only 16 times. Yet this protection is critical because, unlike every courtroom you may have stepped into or any court in a TV drama, the FISA court is not adversarial — meaning there is only a government lawyer and a judge, but no one to advocate for Americans under surveillance.
- We propose measures that would authorize and actively encourage judges in this secret court to seek independent amicus reviews in all sensitive cases — such as those involving significant First Amendment issues — thereby adding a layer of protection for those who will likely never know they have been targeted for secret surveillance.
As mentioned, Wyden and Daines offered an amendment to narrow the Section 215 exception to the Fourth Amendment’s requirement that a search requires a warrant. Section 215 currently allows for FISA court approved searches of business records and all tangible things in the course of a national security investigation, and the underlying text of H.R. 6172 would exclude cell site location and GPS location from Section 215. The Wyden/Daines amendment would also exclude web browsing and search engine histories.
As Wyden explained during debate,
With web browsing and searches, you are talking about some of the most intimate, some of the most personal, some of the most private details of the lives of Americans. Every thought that can come into people’s heads can be revealed in an internet search or in a visit to a website: their health histories, their medical fears, their political views, their romantic lives, their religious beliefs. Collecting this information is as close to reading minds as surveillance can get. It is the digital mining of the personal lives of the American people.
However, the amendment failed to reach the 60-vote threshold necessary for adoption under the rule of debate for H.R. 6172, failing by one vote as four Senators did not vote.
As for the underlying bill the Senate considered, in March, the House passed H.R. 6172 by a 278-136 vote, a bill to reauthorize three expiring FISA provisions used by the National Security Agency (NSA) primarily to conduct surveillance: the business records exception, roving wiretaps, and the “lone wolf” provision. These authorities had been extended in December 2019 to March 15, 2020. However, the Senate did not act immediately on the bill and opted instead to send a 77-day extension of these now lapsed authorities to the House, which did not to take up the bill. The Senate was at an impasse on how to proceed, for some Members did not favor the House reforms while others wanted to implement further changes to the FISA process. Consequently, Senate Majority Leader Mitch McConnell (R-KY) promised amendment votes when the Senate took up H.R.6172.
Moreover, H.R. 6172 ends the NSA’s ability to use the so-called call detail record (CDR) program that had allowed the agency to access data on many billions of calls. Nonetheless, the NSA shut down the program in 2018 due to what it termed technical problems. This closure of the program was included in the bill even though the Trump Administration had explicitly requested it also be reauthorized.
As mentioned, H.R. 6172 would reauthorize the business records exception, which includes “any tangible thing,” in FISA first instituted in the USA PATRIOT Act in 2001 but would reform certain aspects of the program. For example, if the Federal Bureau of Investigation (FBI) or NSA is seeking a business record under FISA for which a law enforcement agency would need to obtain a warrant, then the FBI or NSA will also need to obtain a warrant. Currently, this is not the case. Additionally, under H.R.6172, the FISA application process under Section 215 could not be used to obtain a person’s cell site location or GPS information. However, the FBI or NSA would still be able to use Title I of FISA to seek cell site location or GPS data for purposes of conducting electronic surveillance related to alleged foreign intelligence. The bill would require that prosecutors must inform defendants of the evidence derived from electronic surveillance unless doing so would harm national security.
Moreover, records obtained under Section 215 could be retained no longer than five years subject to a number of exceptions that may serve to make this limitation a dead letter. For example, if such records are deemed to have a “secret meaning” or are certified by the FBI as being vital to national security, then such records may be held longer than five years. Given the tendency of agencies to read their authority as broadly as possible and the past record of IC agencies, it is likely these authorities will be stretched as far as legally possible. It bears note that all restrictions are prospective, meaning that current, ongoing uses of Section 215 would be exempted. The business records provision would be extended until December 1, 2023 as are the other two expiring authorities that permit so-called roving wiretaps and allow for surveillance of so-called “lone wolves.”
For FISA applications under Title I (i.e. electronic surveillance), any agency seeking a FISA order to surveil will need to disclose to the FISA court any information that may call into question the accuracy of the application or any doubtful information. Moreover, certain FISA applications to surveil Americans or residents would need to spell out the proposed investigative techniques to the FISA court. Moreover, any FISA application targeting U.S. officials or candidates for federal office must be approved by the Attorney General in writing before they can be submitted. H.R.6172 would permit the suspension or removal of any federal official, employee, or contractor for misconduct before the FISA court and increases criminal liability for violating FISA from five to eight years. Most of these reforms seem aimed at those Members, many of whom are Republican, that were alarmed by the defects in the FISA surveillance process of Trump Campaign associate Cater Page as turned up by the Department of Justice’s Office of the Inspector General investigation. Some of these Members were opposed to the House Judiciary Committee’s initial bill, which they thought did not implement sufficient reforms to the larger FISA process.
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