House Intel Committee Passes Partisan Surveillance Bill, Upsetting Judiciary Committee
Bitter partisan debate broke out during a markup session Friday over controversial identity disclosure rules included in a just introduced House Intelligence Committee bill (HR-4478) to renew Section 702 Foreign Intelligence Surveillance Act (FISA) authority expiring Dec. 31. The bill was introduced Thursday and set immediately for markup (see 1711300057), a move committee Democrats and outside stakeholders said didn't give them time for review. Democrats offered a few amendments that failed to pass, then the committee voted 13-8 along party lines to pass the FISA Reauthorization Amendments Act. The bill angered House Judiciary Committee leaders, who spent months working on their separate and bipartisan USA Liberty Act (HR-3989) (see 1711080045).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The USA Liberty Act “is the best and most viable proposal introduced to date, and would pass” the House if brought to a vote, said a statement from Judiciary Chairman Bob Goodlatte, R-Va., and ranking member Jerrold Nadler, D-N.Y. Judiciary leaders signaled their willingness to “work with all interested parties,” but the House Intelligence bill emerged because the two committees couldn't agree on common language, said lobbyists and groups tracking the process. The next likely step for the legislation is consultation among the two House committees and the Senate Intelligence Committee, which passed S-2010 in October (see 1710300035), to craft a compromise measure, an Intelligence Committee aide told us. That still leaves out Sen. Ron Wyden, D-Ore., who put forward his own bill, S-1997 (see 1710240029), and told us earlier this week he strongly opposes the Senate FISA bill.
One of the major sticking points dividing the Intelligence Committee was Republicans' insistence on language setting out guidelines for when a person’s identity could be revealed, known as unmasking, an issue that became politicized when candidate Donald Trump accused President Barack Obama of wiretapping Trump's conversations. The unmasking language “is not only unnecessary, but it’s an effort to politicize the bill,” said Intelligence Committee ranking member Adam Schiff, D-Calif. His amendment stripping out unmasking language failed. Schiff said the lack of bipartisan consensus means “this bill will go nowhere” and it will be up to the Senate to pass a Section 702 renewal bill. Several Intelligence Committee Democrats shared his concern, with Rep. Jim Himes, D-Conn., calling the Republican strategy “nakedly political.” The fight over unmasking should be decided on its own merits, Himes said, suggesting Republicans draft a separate bill. "Americans' private information needs to be protected," said Rep. Mike Conaway, R-Texas, in forceful remarks denying that the effort was politically motivated. "It's just good government," he said.
Republicans said their bill would add accountability to the surveillance program. “Let’s get back to our job,” said Rep. Michael Turner, R-Ohio. The bill “strengthens the functions of this committee,” he said. Committee Chairman Devin Nunes, R-Calif., disputed Democrats’ complaint that they weren’t included in the drafting process. “We’ve held several in-depth discussions” on HR-4478, which drew upon ideas in the Senate Intelligence Committee’s similar measure. The unmasking debate emerged during markup of USA Liberty Act when Rep. Blake Farenthold, R-Texas, failed to win votes for his amendment that would impose a prison sentence of up to 10 years for people who seek to unmask identities for any reasons not specified in the surveillance statute (see 1711080045).
Members on both sides of the aisle expressed strong support for renewing Section 702 authority, and disappointment over divisiveness that's unusual for a committee that traditionally has worked in bipartisan manner. "I'm sad," Himes said. "Historically we've operated in a bipartisan way." Rep. Tom Rooney, R-Fla., said he didn't understand why efforts to ensure uniformity around how names are unmasked could be controversial: "I, too, am sad."
The Computer & Communications Industry Association opposes HR-4478, which would “squander Congress’ limited opportunity to exercise oversight over surveillance,” CEO Ed Black said in a statement, criticizing the committee for failing to reach out to stakeholders. CCIA said the bill fails to end the controversial practice of collections of "about" data gathered on a foreign target that could invade the privacy of U.S. residents, and would continue to permit searching of Americans' information collected without a warrant that is based on probable cause.
New America’s Open Technology Institute joined with 36 civil society groups condemning the bill in a letter to Congress, flagging the bill's provision creating a new category of people who could be targeted for surveillance under FISA for “international malicious cyber activity." The bill "is the worst possible outcome for everyone’s privacy," said OTI policy counsel Robyn Greene. "It could be used to allow more unconstitutional surveillance that targets Americans and foreigners," blogged American Civil Liberties Union legislative counsel Neema Singh Guliani.