The Rules Committee left the most contentious piece of Section 702, whether or not queries of Americans’ data should require a warrant, to be decided later.
The House Rules Committee, in a late night vote, advanced a bill that would reauthorize a controversial spying authority but left a key aspect of the debate to be decided later.
The authority in question, Section 702 of the Foreign Intelligence Surveillance Act (FISA), is one of several post 9/11 surveillance authorities that have come under scrutiny as some lawmakers have tried to reclaim the civil liberties lost in the 2000s.
The April 9 hearing in the Rules Committee pitted national security hawkishness against civil liberty concerns.
Lawmakers on the panel, which acts as the final stop for legislation before it comes to the floor for a vote, approved a bill that makes some reforms to the program while leaving aside the issue of warrants for a showdown on the House floor.
The “Reforming Intelligence and Securing America” Act would extend FISA Section 702 for a period of five years and make some reforms that critics of the bill say don’t go far enough.
The bill by Rep. Laurel Lee (R-Fla.) would reform Section 702, an authority passed in 2008 that allows intelligence officials to gather information on foreign actors working outside of the United States.
At least, that’s what the rules are supposed to be.
However, since the bill was last reauthorized by Congress narrowly in 2018, a series of abuses have come to light that have thrown the future of the entire process into question,
These issues have divided Congress and spurred the formation of unlikely alliances across party lines on both sides of the issue.
Though there were fewer the next year, nearly 300,000 queries were still discovered.
What’s in the Reform Bill?
In response to these and countless other reported abuses, Ms. Lee’s bill would make some changes to how information is collected and the safeguards around such actions.
It would primarily strengthen requirements to “ensure that applications to the Foreign Intelligence Surveillance Court … that target United States persons are accurate and complete.”
Other provisions would dramatically cut the numbers of those allowed to perform and authorize FISA queries, which proponents say would help ensure that the law is followed.
Another provision would mandate a flat prohibition on using Section 702 to collect evidence of a crime.
These reforms “will make clear this is an intelligence tool, not a law enforcement tool,” House Intelligence Committee Ranking Member Jim Himes (D-Conn.), a supporter, said during the Rules Committee hearing.
It also strengthens penalties for illegal queries, imposing a fine or up to 10 years in federal prison for violations.
Finally, it would make it easier for Congress to exercise oversight of the program.
The legislation would also green-light the program to continue for another five years.
But privacy advocates have bristled at the bill, which they feel doesn’t go far enough to address the causes brought to light over the past several years—specifically in its absence of a warrant, the key issue that has divided Congress in handling FISA reauthorization.
The Debate Over Warrants
The Rules Committee left the most contentious piece of Section 702, whether or not queries of Americans’ data should require a warrant, to the full House to decide.
A proposed amendment to the bill “[p]rohibits warrantless searches of U.S. person communications in the FISA 702 database, with exceptions for imminent threats to life or bodily harm, consent searches, or known cybersecurity threat signatures.”
The bill’s fate, in many ways, hinges on the fate of this amendment.
Several members of Congress say they won’t back the bill without a warrant requirement. Others say they won’t back the bill if it does have a warrant requirement.
This issue was hashed out during the April 9 committee hearing, offering the rare spectacle of House Judiciary Chairman Jim Jordan (R-Ohio) and Ranking Member Jerry Nadler (D-N.Y.) agreeing on an issue.
“When you have the history we have with this organization relative to not following the rules, we think you need a separate and equal branch of the government … to approve a warrant,” Mr. Jordan said in defense of the amendment during his opening remarks. “The warrant requirement has to be in the legislation or I don’t think we’ve done our job.”
Mr. Nadler agreed, saying that without a warrant requirement, the changes in Ms. Lee’s bill would be “so modest they would prove ineffective.”
Meanwhile, members of the House Intelligence Committee have called for not requiring a warrant, saying that such a procedure would be burdensome and could endanger national security.
Intelligence Committee Chairman Mike Turner (R-Ohio) said “To impose a warrant requirement is dangerous for America.”
He said that the only information intelligence officials can view under FISA is the communications of Americans with foreign terrorist groups like Hamas and ISIS, which he said aren’t constitutionally protected.
With the passage of the legislation through the Rules Committee, it will now be up to House Speaker Mike Johnson (R-La.) to bring the bill to the floor for a vote.
He’s indicated he’ll vote against the warrant requirement, indicating that others in leadership will do the same.
The bill’s fate will hinge either way on the inclusion or exclusion of a warrant requirement.
Should it pass the House, the issue will be equally contentious in the Senate, where similar bipartisan groups have formed in favor of or in opposition to a warrant requirement.
