House Foreign Surveillance Turf War Heats Up as Law Sunset Nears

By Daniel R. Stoller

The House Intelligence and Judiciary committees are ramping up competing rhetoric on reauthorizing an important foreign surveillance mechanism as the deadline fast approaches.

U.S. intelligence and law enforcement agencies rely on the authorities granted by the Foreign Intelligence Surveillance Act Section 702 to conduct digital communications surveillance on foreign citizens outside of the U.S. The authorization under FISA Section 702 expires Dec. 31, and a fight is brewing between the influential House committees, a legislative analyst told Bloomberg Law Dec. 1.

There is a “turf war between the House Intelligence Committee and the House Judiciary Committee in the past 48 hours” over what path to take to reauthorize the important legislation, Georgette Spanjich, a vice president who focuses on cybersecurity and national security issues at public policy consulting group Plurus Strategies LLC, said. With the Dec. 31 deadline looming, “the key players, both on the Hill and in the intelligence community, seem to acknowledge that additional negotiations will be needed to get this done,” she said.

On one side of the battle is the House Intelligence bill, the FISA Amendments Reauthorization Act ( H.R. 4478), which would extend authorizations under FISA Section 702 for four years. The Intelligence Committee approved Chairman Devin Nunes’ (R-Calif.) bill Dec. 1 on a 13-8 party-line vote.

The bill, as amended, would require the Department of Justice to brief the Senate and House Judiciary committees on data intercepted under the program and require a report from the attorney general and the director of national intelligence to Congress on the challenges facing the intelligence community under such authorities. The amendment also includes provisions to protect whistleblowers at government contractors.

From House Judiciary Chairman Bob Goodlatte (R-Va.) comes the USA Liberty Act ( H.R. 3989), which would stop the government from using data collected under Section 702 to pursue criminal prosecution against a U.S. citizen without, in most cases, a warrant or consent. The bill also calls for the National Security Agency director and attorney general to sign an affidavit that certifies collected communications under Section 702 that don’t contain foreign intelligence have been deleted. The bill would have a six-year sunset provision.

Goodlatte and Rep. Jerrold Nadler (D-N.Y.) said in a Dec. 1 statement ahead of the House Intelligence markup that the “USA Liberty Act is the only bill that protects both national security and Americans’ civil liberties,” and it is “the best and most viable proposal introduced to date.” Goodlatte and Nadler predicted that the House would “overwhelmingly” pass the bill.

The eventual FISA Section 702 reauthorization measure may be “more messaged as a reform bill attached to one of the must-pass end of the year vehicles, likely a continuing funding resolution,” Spanjich said.

For his part, Nunes has signaled that there may be room to incorporate the best parts of the various bills.

“All the bills are good attempts to grapple with really challenging issues of security and privacy, and the final bill will most likely incorporate elements from all these bills,” Jack Langer, director of communications for the Intelligence Committee, told Bloomberg Law.

Tech Sector

The tech sector is weighing in the battle. Reform Government Surveillance (RGS), a coalition of some of the tech sector’s major players including Apple Inc., Facebook Inc., Alphabet Inc.'s Google, and Microsoft Corp., came out against House Intelligence’s FISA Amendments Reauthorization Act.

The group has “significant concerns with the bill” because it doesn’t restrict the FBI from searching the content of U.S. citizens’ communications without a warrant, and it doesn’t codify when “about” collections would end, among other concerns, the RGS said in a Nov. 30 blog post. The NSA announced April 28 that it would no longer collect communications that were solely between two U.S. citizens but contained information “about” a foreign surveillance target abroad. In addition, the agency said it would delete such data it had already collected.

Senate legislation mirrors the split in the House bills. Similar debates are swirling around what changes needed to be made to the law, such as codifying the NSA decision to end “about” collections and increasing privacy and civil liberties oversight practices.

The FISA Amendment Reauthorization Act ( S. 2010), introduced by Senate Intelligence Committee Chairman Richard Burr (R-N.C.), was approved, 12-3, by the committee Oct. 25. The bill would require the FBI to submit a request to the Foreign Intelligence Surveillance Court if a search of communication includes a U.S. person. The FISC would then have two days to rule on the legality of the query.

The USA Liberty Act ( S. 2158) is companion legislation to the House bill of the same name but hasn’t cleared the Judiciary Committee.

Outside Chances

There are other FISA Section 702 reauthorization bills in the House and Senate but no bipartisan consensus on which may reach the White House before the current law expires.

Companion bills offered by Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) ( S. 1997) and Rep. Zoe Lofgren (D-Calif.) ( H.R. 4124) would add increased privacy and civil liberties protections for U.S. citizens. The legislation hasn’t gained committee approval in either chamber.

Sen. Tom Cotton’s (R-Ark.) FISA reauthorization bill ( S. 1297) would renew the surveillance authorities without a sunset. The bill, which has been called a clean reauthorization, has the support of the White House and leading members of the intelligence community, including Director of National Intelligence Dan Coats, FBI Director Christopher Wray, and NSA Director Mike Rogers.

The chances for a clean reauthorization are low, Spanjich said.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bloomberglaw.com

To contact the editor responsible for this story: Donald Aplin at daplin@bloomberglaw.com

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