House bill set to reignite debate on warrantless surveillance

House bill set to reignite debate on warrantless surveillance
© Greg Nash

A powerful pair of House lawmakers is poised to introduce legislation this week that would place modest limits on the National Security Agency’s warrantless surveillance program, likely reigniting debate on Capitol Hill and setting up a potential showdown with the Trump administration. 

The bill, from the chairman and ranking member of the House Judiciary Committee, is set to be introduced as early as Thursday.

According to a draft version obtained by The Hill, the proposal would require criminal investigators to obtain a court order before viewing the content of any communications collected under that program — including those sent by Americans. 

The standard for viewing metadata is set lower, requiring investigators only to seek higher-level approval. Metadata information includes things like call time and sender and receiver.

The Trump administration has been campaigning fiercely for a clean, permanent renewal of the surveillance program, which is set to expire at the end of this year. Intelligence officials, who briefed reporters on their use of the authority last week, believe it to be one of the most critical tools they have to combat terrorism.

But Judiciary Committee chairman Bob GoodlatteRobert (Bob) William GoodlatteLots of love: Charity tennis match features lawmakers teaming up across the aisle Dems try to end hearing on bias against conservatives in tech Former FBI lawyer Lisa Page gets closed-door grilling from House Republicans MORE (R-Va.) has said that a wholesale permanent reauthorization of the law is a nonstarter in the House.

The proposal would extend the law until 2023, with a number of other tweaks aimed at boosting oversight and ensuring the agency is only spying on legal targets.

It would also prohibit the agency for six years from collecting communications that are about a foreign target but are neither sent nor received by that person. The NSA voluntarily halted such collection, known as “about” surveillance, earlier this year, but wants to retain the authority to resume it 

For civil liberties advocates, the proposed changes are a relatively minor adjustment — although they applaud the moratorium on “about” collection. 

But the legislation does not place the same limits on national security investigators, who are believed to use the database far more frequently. 

The critical section of the law — Section 702 of a 2008 package of amendments to the Foreign Intelligence Surveillance Act (FISA) — is aimed at collecting data on foreign spies, terrorists and other foreign targets overseas. 

It allows the government to collect the emails and phone calls of foreigners abroad from American internet and phone companies, without individual court orders and even when those foreigners communicate with Americans, who are said to have been collected “incidentally.”   

Civil liberties advocates have long pushed for Congress to close the so-called backdoor search loophole that allows federal investigators to search through Americans’ information that has been “incidentally” collected. Critics of the authority say it circumvents Fourth Amendment protections against unlawful search and seizure. 

For some advocates, placing limits only on criminal investigations is a Potemkin reform.

The FBI used information about Americans obtained under Section 702 in criminal investigations just one time in 2016, according to a report issued by the intelligence community earlier this year.

And although the government did not report queries made by the FBI in national security cases, investigators are believed to use the database much more frequently in such investigations.

The draft proposal also does not require a warrant to query the database — only to view the any results gathered under Section 702.

In the Senate, some privacy hawks are already preparing legislation demanding stiffer reforms. Sens. Rand PaulRandal (Rand) Howard PaulMcCain: Trump plays into 'Putin's hands' by attacking Montenegro, questioning NATO obligations The Nation editor: Reaction by most of the media to Trump-Putin press conference 'is like mob violence' Lewandowski: Trump-Putin meeting advances goal of world peace MORE (R-Ky.) and Ron WydenRonald (Ron) Lee WydenNovartis pulls back on planned drug price increases The Hill's Morning Report — Trump’s walk-back fails to stem outrage on Putin meeting Meet the woman who is Trump's new emissary to Capitol Hill MORE (D-Ore.) are working on a bill that would require a warrant for all queries of Americans’ data.

A proposal more likely to gain support, spearheaded by Senate number-two John CornynJohn CornynDeal to fix family separations hits snag in the Senate Senate must approve Justice Served Act to achieve full potential of DNA evidence The Hill's Morning Report — Trump’s walk-back fails to stem outrage on Putin meeting MORE (R-Texas) and Sen. Dianne FeinsteinDianne Emiel FeinsteinSenate GOP breaks record on confirming Trump picks for key court Deal to fix family separations hits snag in the Senate Election Countdown: Senate, House Dems build cash advantage | 2020 Dems slam Trump over Putin presser | Trump has M in war chest | Republican blasts parents for donating to rival | Ocasio-Cortez, Sanders to campaign in Kansas MORE (D-Calif.), is also thought to be forthcoming — but is not likely to go as far in its reform efforts.

Cornyn recently told The Hill that he would vote for a measure from Sen. Tom CottonThomas (Tom) Bryant CottonBipartisan group introduces retirement savings legislation in Senate Overnight Defense: Fallout from tense NATO summit | Senators push to block ZTE deal in defense bill | Blackwater founder makes new pitch for mercenaries to run Afghan war Hillicon Valley: DOJ appeals AT&T-Time Warner ruling | FBI agent testifies in heated hearing | Uproar after FCC changes rules on consumer complaints | Broadcom makes bid for another US company | Facebook under fire over conspiracy sites MORE (R-Ark.) mirroring the intelligence committee’s demand for a clean, permanent reauthorization, while acknowledging that passage is unrealistic.

Draft legislation by kballuck1 on Scribd