House Passes FISA Section 702 Reauth Amid Trump Contradictions, Privacy Concerns
The House passed a bill Thursday to reauthorize Foreign Intelligence Surveillance Act Section 702 through 2023 despite a series of mixed messages from President Donald Trump's administration and opposition from backers of alternate legislation that included stricter privacy protections (see 1801100056). The Rapid DNA Act (S-139), which was a legislative vehicle for a revised version of the FISA Amendments Reauthorization Act (HR-4478), is seen to have a strong chance of passing the Senate. The measure also has critics in the Senate, who may filibuster it absent the inclusion of additional privacy protections. Congress included a short-term extension of Section 702 authority in its most recent continuing resolution to fund the federal government, which expires Jan. 19 (see 1712210054).
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House members voted 256-164 for the HR-4478 language after a debate in which bipartisan coalitions of lawmakers supported and opposed the legislation. The final vote on the HR-4478 language itself didn't divide along party lines -- 65 Democrats approved the legislation and 45 Republicans opposed it. Lawmakers voted 233-183 against a bid by backers of the Uniting and Strengthening America by Reforming and Improving the Government’s High-Tech Surveillance (USA Rights) Act (HR-4124/S-1997) to substitute that bill's language into the S-139 vehicle in place of the HR-4478 text. Fifty-eight Republicans approved the proposed substitute amendment, while 55 Democrats opposed it.
Passage of the HR-4478 language came after Trump and the White House delivered a series of contradicting statements Wednesday and Thursday about their position on Section 702 reauthorization. Trump tweeted Thursday that Section 702 “may have been used, with the help of the discredited and phony” 2016 private intelligence dossier claiming connections between Trump's presidential campaign and the Russian government “to so badly surveil and abuse the Trump Campaign by the previous administration and others.”
The tweet contradicted the White House Office of Management and Budget's Tuesday statement to the House Rules Committee in support of the HR-4788 language. The White House press office also released a statement Wednesday opposing amending the measure with the HR-4124 language. House Intelligence Committee ranking member Adam Schiff, D-Calif., a supporter of the HR-4478 language, initially called on the House floor Thursday for leaders to “withdraw consideration of the bill today to give us more time to address privacy questions that have been raised as well as to get a clear statement from the [Trump] administration about their position on the bill.”
Trump tweeted more than an hour later that he had “personally directed the fix to the unmasking process since taking office" and supported the HR-4788 language. Speaker Paul Ryan, R-Wis., apparently initiated Trump's clarifying second tweet via a Thursday morning conversation with the president. Ryan told reporters after the final vote that Trump was concerned about domestic aspects of FISA, which “is not what we’re doing today. Today was [Section] 702, which is a different part of that law,” Ryan said. Trump “knows that” and has clarified his position. "We don't think that there was a conflict at all" between the statements, said White House Press Secretary Sarah Huckabee Sanders during a news conference.
Ryan and House Minority Leader Nancy Pelosi, D-Calif., both supported passage of the HR-4478 language and opposed the HR-4124 substitute. A shift to the alternate language “kills” the Section 702 program, which means the U.S. intelligence community will revert to “flying blind” in combating terrorism, as it did before the Sept. 11 terrorist attacks, Ryan said. Pelosi supported the additional privacy protections proposed in HR-4124 but said the HR-4478 language also contains some new protections. “It's about striking the right balance,” she said. The HR-4124 amendment, if passed, would mean Section 702 reauthorization “won't go anyplace” in the Senate “and we will be left with an extension of the status quo.” House Judiciary Committee Chairman Bob Goodlatte, R-Va., backed the HR-4478 language for containing several important provisions from his alternate Uniting and Strengthening American (USA) Liberty Act (HR-3989).
House Judiciary ranking member Jerry Nadler, D-N.Y., supported the HR-4124 amendment, saying the narrow privacy protection included in the HR-4478 language “does not” constitute an acceptable level of Section 702 overhaul. “In the era of [Attorney General] Jeff Sessions” and Trump, the limited protections in the HR-4478 language mean “absolutely nothing stops the DOJ from trolling” the information collected under Section 702 for use in cases that don't “have anything to do” with the statute's counterterrorism goals, Nadler said. Rep. Justin Amash, R-Mich., one of the amendment's lead sponsors, said its language would still allow the intelligence community to “use Section 702 for its purpose of surveilling foreigners overseas” while protecting “innocent Americans' data.” Rep. Zoe Lofgren, D-Calif., also a lead sponsor of the amendment, said it was needed because the HR-4478 language “does not meet the standards that we should have for adhering to the Constitution.”
Senate Majority Leader Mitch McConnell, R-Ky., filed cloture Thursday on S-139, setting up a vote next week on the HR-4788 language. Senate Majority Whip John Cornyn, R-Texas, earlier told reporters he was hopeful for a vote in the near future on the measure. Sens. Rand Paul, R-Ky., and Ron Wyden, D-Ore., the lead sponsors of HR-4124's Senate companion (S-1997), threatened to filibuster the HR-4478 language when it comes to the Senate floor. “No American should have their right to privacy taken away,” Paul said in a statement. “I will keep doing everything in my power, including filibuster, to oppose this legislation and to speak out and stand up for forcing the government to get a warrant based on probable cause, as required by the Constitution.” A “concerted campaign of fear-mongering and misinformation pushed this flawed bill over the line,” Wyden said in a statement. “The Senate must allow real debate and amendments, and not push this legislation through in the dark.”
Several tech sector and public interest groups in statements condemned House passage of the HR-4478 language. “The government will use this bill to continue warrantless intrusions into Americans’ private emails, text messages, and other communications,” said American Civil Liberties Union Legislative Counsel Neema Singh Guliani. “The Senate should reject this bill and rein in government surveillance powers to bring Section 702 in line with the Constitution.” The Computer & Communications Industry Association recognizes “that legislation in this area is facing a deadline for some type of renewal,” said President Ed Black. “We believe it’s imperative that positive reforms with better protections for citizens and civil liberties be included in any new legislation. We will now look to improve the legislation before it moves to the Senate.” Congress “had the chance to explicitly ensure that information found through surveillance of foreigners could not be used against Americans," said Center for Democracy and Technology Deputy Director-Freedom, Security and Technology Project Michelle Richardson. “This decision was a no-brainer. Instead, the House failed to guarantee Americans this fundamental freedom.”