House engages in lengthy debate over rival surveillance bills
A long-simmering debate over a powerful surveillance tool is coming to a head in Congress, where the House will vote Tuesday on rival bills to extend the expiring wiretapping law at the heart of the program.
The outcome of the showdown, which has muddled the usual partisan lines, has far-reaching implications for national security and privacy. At issue is Section 702, a law that allows the government to surveil foreigners abroad without warrants and sometimes invade Americans’ private messages.
On one side is the more progressive wing of Democrats in Congress, who have joined former President Donald J. Trump’s harder-right Republican allies in pushing for major restrictions on the law’s use. A bill for the Judiciary Committee would impose sharp limits while improving protections for Americans’ privacy rights.
On the other side are centrists and national security hawks from both parties, who instead Intelligence Committee Bill that would entail more modest changes. They have denounced the more reformist legislation as likely to put the country in greater danger from terrorists, hackers, spies and other threats.
Only one of the bills can move out of the House, where, in a sign of how unusual and politically volatile the debate is, Speaker Mike Johnson, Republican of Louisiana, is invoking a rarely used process in which both bills get a chance. or-down vote on the floor. Lawmakers will have no opportunity to offer amendments. Even if both bills receive a majority, only the bill that receives the most votes will be sent to the Senate.
Both lawmakers and outside allies — such as privacy advocacy groups backing the Judiciary Committee’s version and former national security officials backing the Intelligence Committee’s version — have sounded the alarm about the implications of each bill.
For example, proponents of the judiciary bill have portrayed the intelligence rival as a “Wolf in sheep’s clothes,” as the Brennan Center for Justice put it, saying it would fail to rein in unauthorized surveillance and expand the government’s spying powers.
Meanwhile, supporters of the intelligence law say the judiciary’s version is “seriously flawed.” a letter signed Monday by three dozen former senior national security officials so to speak, and would cripple the government’s ability to recognize and use information it has lawfully collected that could protect Americans.
“When we disagree here — and there are a lot of disagreements — the outcome of those disagreements is usually not that important,” Rep. Dan Crenshaw, Republican of Texas, said at a House Intelligence Committee hearing last week, adding added: “This is the one major disagreement in Congress that should really scare us.”
Members of the Judiciary Committee bristle at such criticism, arguing that the Intelligence Committee bill is too deferential to government agencies.
The intelligence law “simply doesn’t go far enough,” Representative Jim Jordan, Republican of Ohio and chairman of the Judiciary Committee, told reporters last week, adding: “We want to implement strong language to protect Americans’ privacy. , and somehow that’s a bad thing to do?
The focus of the debate is on a surveillance law known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA. First introduced in 2008, it legalized a form of the once-secret, no-guarantee surveillance program that the Bush administration started after the terrorist attacks of September 11, 2001.
Under Section 702, the government is authorized to collect, without a warrant, from domestic companies like AT&T and Google, the messages of non-citizens abroad – even if those targets are communicating with Americans. As a result, the government sometimes collects private messages from Americans without a warrant.
Congress has taken action several times—in 2012 and again in 2018—to extend Section 702. The law will now expire at the end of the month without new legislative action, although the surveillance program itself can continue to operate legally until April.
But the law’s fate is less certain this year. Civil liberties-oriented Democrats long suspicious of the program have been joined by right-wing Republicans who have joined in Trump’s hostility toward the FBI over its investigation into his 2016 campaign aides’ ties to Russia.
Revelations that FBI analysts had broken certain rules by conducting numerous searches for U.S. information have helped fuel the push for major overhauls. The FBI has already implemented internal reforms in 2021 and 2022 to reduce such violations.
The Intelligence Act would expand Section 702, while codifying the FBI’s internal changes into law and reducing by 90 percent the number of bureau personnel with access to the raw database of intercepted communications.
The competing judiciary bill would go much further, requiring officials to obtain a warrant before querying the repository using an American’s name or other identifier, and further limiting the number of officials who can access the data .
Privacy advocates and proponents of the judiciary bill argue that this is the case This is necessary from a constitutional point of view and to prevent abuse. Biden administration officials have argued that such a rule would reduce the effectiveness of the program and put the country at risk, including from terrorist threats posed by the war between Israel and Hamas.
“The bill coming out of the House Judiciary Committee effectively undermines the core of 702 and severely limits our ability to protect the homeland,” said Joshua Geltzer, a White House national security official, adding that the administration was a strong supporter of the rival bill.
There are many other important differences in the accounts.
For example, the judiciary bill would prohibit the government from purchasing information about Americans from data brokers if a warrant were needed to obtain that same data directly from communications service providers. The Intelligence version does not solve this problem.
The judiciary bill would also include a list of crimes for which the government may use, as evidence in prosecutions, the private emails of U.S. defendants that it collects without a warrant under Section 702, unless officials already have a warrant. had orders to closely examine that citizen. Crimes such as child pornography and human trafficking would no longer apply. Critics complain that if analysts, while watching someone else, came across evidence that an American was involved in such crimes, the evidence would be off-limits for use in court.
Yet another key difference is that the intelligence law — but not the judiciary’s — would expand the definition of what kind of company can be forced to participate in Section 702 by making communications streams available to the government. Supporters of the bill on the judiciary characterize this proposed expansion as an overreach.
The House of Representatives and Senate are also expected to vote this week on a defense authorization bill that would extend Section 702 unchanged until mid-April. That would create an opportunity for an oversight court to issue new annual orders allowing the program to operate through April 2025 — even if the underlying law expires in the meantime.
Members of the far-right Freedom Caucus have accused Mr Johnson of including this short-term extension in the defense bill, posing a political threat to the new president.
“Under no circumstances should an extension be tied to ‘must-pass’ legislation,” the group said in a statement last week, arguing that any Section 702 legislation “should only be considered with significant reform and as an stand-alone measure.”
Mr Johnson has tried to portray the extension of the defense bill as a low-stakes way to buy time for negotiators. Although the program can apparently continue to operate lawfully until April 2024 under annual orders issued by the Oversight Court last April, he has talked as if the program would simply end when the statute expires after New Year’s Eve.
“We cannot let things get dark as we work to forge this compromise to solve the problem,” Mr. Johnson said on Fox News on Sunday, describing Section 702 as a “critically important tool for national security.” , while also expressing concern about “how it was being abused.”