House Judiciary OK’s Amended Surveillance Reauthorization Bill

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By Jimmy H. Koo and Daniel R. Stoller

The House Judiciary Committee Nov. 8 approved, on a 27-8 vote, reauthorizing a law that gives the government the power to intercept the digital communications of foreign citizens outside the U.S. with added privacy and civil liberty protections.

The amended version of the USA Liberty Act (H.R. 3989), introduced by Judiciary Committee Chairman Robert W. Goodlatte (R-Va.), would extend Section 702 of the Foreign Intelligence Surveillance Act until Sept. 30, 2023. FISA Section 702 authorizes government collection of digital communications of foreign citizens outside the U.S. from internet service providers and other communications providers.

The current authority is set to expire Dec. 31. The new bill includes a six-year sunset provision.

As approved by the committee, the bill would stop the government from using data collected under Section 702 to pursue criminal prosecution against a U.S. citizen without a warrant or without consent, unless certain exclusions apply. The bill also calls for the National Security Agency director, and the attorney general, to sign an affidavit that certifies collected communications under Section 702 that don’t contain foreign intelligence are deleted.

House Bill Amendments

The committee made some changes to the bill at the Nov. 8 markup session.

Goodlatte introduced a substitute amendment that would allow access to communications information only if a government query is reasonably designed to return foreign intelligence information evidencing a crime. The amendment was unanimously approved.

An amendment from ranking member John Conyers (D-Mich.), also unanimously approved, sought to fix broad language but still allow law enforcement agencies to pursue people reasonably believed to be engaged in international terrorism.

The committee also approved an amendment from Rep. David Cicilline (D-R.I.) that would prohibit limiting criminal penalties for offenses related to unauthorized access or use of information acquired under Section 702.

Balancing Act

Lawmakers have been balancing calls to limit government surveillance with competing ones to not make wholesale changes to FISA Section 702 that would limit the intelligence community’s efficiency. Whether to include a sunset provision or permanently reauthorize Section 702 has also been under discussion.

The only reason Congress is debating “Section 702 authority is because it is up for renewal,” Matthew Heiman, vice president and associate general counsel at Johnson Controls International PLC and a former attorney adviser in the Justice Department’s National Security Division in the George W. Bush administration, told Bloomberg Law Nov. 8.

The House, “is trying to fix a problem that isn’t there,” he said. The intelligence community already has robust surveillance oversight from the executive, judiciary, and legislative branches, and there hasn’t been an abuse of power that should drive major legislative changes, he said.

U.S. surveillance powers are under more scrutiny than any other country, Heiman said. If massive changes are made, the intelligence community could revert to pre-9/11 surveillance shortcomings, he said.

Among the bill’s supporters is the Computer & Communications Industry Association. Senior Policy Counsel Bijan Madhani told Bloomberg Law Nov. 8 that the industry group is “glad to see the USA Liberty Act pass out of the House Judiciary Committee as amended.”

Others say the House bill doesn’t go far enough. The Electronic Frontier Foundation, a privacy advocacy group, has called for stronger protections to prevent the government from conducting unrelated “back door” searches on information obtained through Section 702, and better oversight transparency.Rep. Ted Poe (R-Texas) unsuccessfully offered an amendment to avoid incidental collection of U.S. citizens’ information by requiring that the government obtain a warrant based on probable cause to obtain data under Section 702. The amendment failed on a 12-21 vote.

Senate Bills

Even if the bill passes the House, it will have to contend with two competing Senate FISA reauthorization measures stemming from the Senate Select Committee on Intelligence.

The FISA Amendment Reauthorization Act ( S. 2010), introduced by Senate Intelligence Chairman Richard Burr (R-N.C.), cleared the panel Oct. 25 by a 12-3 vote. The bill would require the FBI to submit a request to the Foreign Intelligence Surveillance Court (FISC) 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.

A FISA Section 702 bill ( S. 1297), introduced by Sen. Tom Cotton (R-Ark.), would reauthorize the law without changes. The bill has gained support from all committee Republicans, including Burr. Cotton’s bill was referred to the Senate Judiciary Committee, which hasn’t yet acted on it.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com; and Daniel R. Stoller in Washington at dstoller@bna.com

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

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