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 GoodlatteOvernight Tech: Zuckerberg breaks silence on Cambridge Analytica controversy | Senate passes sex trafficking bill | EU pushes new tax on tech | YouTube toughens rules on gun videos Judiciary Dem wants Zuckerberg to testify on Cambridge Analytica House Judiciary Chair expected to issue DOJ subpoena over Clinton emails as soon as this week 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 PaulHouse poised to vote on .3T spending bill Overnight Finance: Lawmakers race to finalize omnibus | What we know about funding bill | White House on board | Fed raises rates for first time under Powell Senate passes controversial online sex trafficking bill MORE (R-Ky.) and Ron WydenRonald (Ron) Lee WydenOvernight Cybersecurity: Zuckerberg breaks silence on Cambridge Analytica | Senators grill DHS chief on election security | Omnibus to include election cyber funds | Bill would create 'bug bounty' for State Senate passes controversial online sex trafficking bill GOP senator blocking Trump's Intel nominee 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 CornynWhite House officials expect short-term funding bill to avert shutdown Spending bill delay raises risk of partial government shutdown support GOP leaders to Trump: Leave Mueller alone MORE (R-Texas) and Sen. Dianne FeinsteinDianne Emiel FeinsteinJeh Johnson: Media focused on 'Access Hollywood' tape instead of Russian meddling ahead of election What’s genius for Obama is scandal when it comes to Trump Coalition presses Transportation Dept. for stricter oversight of driverless cars 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 CottonProtecting American innovation Russian spy poisoning brings world powers closer to day of reckoning GOP senators see Tillerson ouster as the new normal 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