Lawmakers grapple with warrantless wiretapping program

Lawmakers grapple with warrantless wiretapping program
© Greg Nash

House Judiciary Committee staff are wrangling over the details of a proposal to reform the National Security Agency’s controversial warrantless wiretapping program, according to interviews with multiple committee members.

Three senior members — Chairman Bob GoodlatteRobert (Bob) William GoodlatteFight breaks out between Jordan, Nadler over rules about showing video at Garland hearing The job of shielding journalists is not finished Bottom line MORE (R-Va.), ranking member John Conyers (D-Mich.) and Rep. Jim SensenbrennerFrank (Jim) James SensenbrennerProtecting the fundamental right of all Americans to have access to the voting booth Republicans compare Ron Johnson to Joe McCarthy: NYT GOP puts pressure on Pelosi over Swalwell MORE (R-Wis.) — have privately agreed to push for limitations on the program as a condition of reauthorizing it when it expires at the end of this year, The New York Times reported on Tuesday.

But multiple committee members say they haven’t seen any kind of draft proposal yet — and some, like Rep. Darrell Issa (R-Calif.), indicated that they will push for more privacy protections than Goodlatte, Sensenbrenner and Conyers have reportedly agreed to include.

“There is no deal. We haven't even set the table for the negotiations that have to happen,” said one committee source. “It's very early.”


The House Intelligence Committee, which also claims jurisdiction over the issue, has been briefed on the rough outlines but also haven’t seen anything on paper, according to a committee source.

The White House is pushing for a clean and permanent reauthorization of the law — something Goodlatte says does not have the votes to pass in the House.

“Congress must reauthorize this critical national security tool but not without reforms,” he said in a statement Tuesday.

“The House Judiciary Committee is working hard to achieve consensus to reform and reauthorize FISA Section 702, consulting all interested parties including the White House, national security agencies, and privacy advocates.”

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 targets.

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.

Civil liberties advocates have long pushed for Congress to close the so-called backdoor search loophole allowing federal investigators to sift through Americans’ information that has been “incidentally” caught up in 702 collection. Critics of the authority say it circumvents Fourth Amendment protections against unlawful search and seizure.

Supporters of the authority say it is critical to connecting the dots needed to identify and disrupt terrorist plots.

Among the limits Goodlatte, Sensenbrenner and Conyers have reportedly agreed to: Requiring FBI agents to obtain a warrant before sifting through the program’s database of intercepted messages for data about American criminal suspects.

But just how tightly to close that “loophole” is the main sticking point of staff negotiations, Rep. Ted Lieu (Calif.), a privacy-minded Democrat on the committee, told The Hill.

According to the language of the agreement as reported by The Times, for example, investigators would apparently only be required to seek a warrant to use Americans’ data in criminal investigations, not national security investigations — a potentially minor adjustment.

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.

But other agencies, such as the CIA and the NSA, used search terms associated with an American over 5,000 times in 2016. 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.

Some civil liberties advocates want to see U.S. persons’ communications that are incidentally swept up purged from government databases entirely.

Reform advocates tracking negotiations are warily watching Goodlatte, who has repeatedly opposed an amendment from Reps. Thomas Massie (R-Ky.) and Zoe Lofgren (D-Calif.) requiring the government to obtain a probable cause warrant before searching databases for information about U.S. citizens.

But other key committee Republicans are seen as keen advocates of reform, particularly the libertarian-leaning House Freedom Caucus.

Goodlatte, Sensenbrenner and Conyers also want to prohibit the agency from collecting emails that are about a foreign target but are neither to nor from that person, according to The Times. The NSA voluntarily halted such collection, known as “about” surveillance, earlier this year, but wants to retain the authority to resume it.

They are also expected to include a requirement that any executive branch official seeking to “unmask” or reveal the identity of an American citizen in intelligence reports sign a certification avowing that they need the information for a legitimate national security purpose, according to the Times. The identities are typically hidden to minimize privacy invasions.

The Senate is also poised for a tense fight over Section 702.

Although some prominent Republicans — including Senate Intelligence chairman Richard BurrRichard Mauze BurrPublic health expert: Biden administration needs to have agencies on the 'same page' about COVID Top Biden adviser expresses support for ban on congressional stock trades Biden's FDA nominee advances through key Senate committee MORE (R-N.C.) — have signed on to a bill from Sen. Tom CottonTom Bryant CottonSinema scuttles hopes for filibuster reform Republicans threaten floor takeover if Democrats weaken filibuster  Will Putin sink Biden? MORE (R-Ark.) that would permanently extend the authority as is, it faces stiff opposition from other privacy-minded lawmakers.

Sen. Rand PaulRandal (Rand) Howard PaulRand Paul cancels DirecTV subscription after it drops OAN Trump slams Biden, voices unsubstantiated election fraud claims at first rally of 2022 Overnight Energy & Environment — Lummis holds up Biden EPA picks MORE (R-Ky.) has consistently opposed the so-called “backdoor search loophole” and Sen. Dean HellerDean Arthur HellerSeven most vulnerable governors facing reelection in 2022 Nevada becomes early Senate battleground Nevada governor Sisolak injured in car accident, released from hospital MORE (R-Nev.) has called for greater transparency on surveillance programs.