Lawmakers Move on Short-Term Extension of Surveillance Authority

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By Daniel R. Stoller

Congress moved Dec. 21 toward temporarily extending some electronic surveillance powers, amid warnings from U.S. intelligence officials that a short-term reauthorization will impact their agencies’ anti-terrorism efforts.

The Senate cleared a stopgap spending bill on a 66-32 vote that included an extension of some expiring provisions in the Foreign Intelligence Surveillance Act (FISA) until Jan. 19. The House passed the bill on a 231-188 vote early in the day. The measure now heads to President Donald Trump for his signature.

Although White House officials have said such authority for existing surveillance may extend to April 26 under a Foreign Intelligence Surveillance Court (FISC) order, the relevant FISA provisions had been set to expire Dec. 31. Lawmakers haven’t been able to agree on how to structure a long-term reauthorization. The temporary extension only postpones that fight until early next month.

Extending FISA authority for a short period will allow intelligence and law enforcement agencies to continue digital surveillance, Attorney General Jeff Sessions, FBI Director Christopher Wray, Director of National Intelligence Dan Coats, CIA Director Mike Pompeo, and National Security Agency Director Michael Rogers said in a Dec. 21 statement. The officials also said a short-term reauthorization would “fail to provide certainty, and will create needless and wasteful operational complications.”

Committee-approved surveillance bills in the House and Senate have taken varying approaches to long-term reauthorization. The House and Senate intelligence committees have approved bills ( H.R. 4478, S. 2010) that would impose relatively few new privacy protections. The House Judiciary Committee has advanced a bill ( H.R. 3989) that would make more sweeping changes.

“It will be very difficult to come to an agreement before Jan. 19, in light of the fairly stark difference on an appropriate path forward in the bills that have been introduced and in some of the statements made by members of Congress,” Brian Egan, national and homeland security partner at Steptoe & Johnson LLP and former senior legal official at the White House and National Security Council under then-President Barack Obama, told Bloomberg Law.

The NSA, the FBI, and other law enforcement officials use authority under Section 702 of the FISA law to conduct communications surveillance of foreigners abroad suspected of national security threats. Lawful requests for data on these threats are often served on major telecommunications companies such as AT&T Inc., Verizon Communication Corp., and Sprint Corp., and other companies.

A bipartisan quartet of senators said in a Dec. 21 statement they would oppose a long-term extension without substantial congressional debate.

“Congress should not vote on any long-term reauthorization of Section 702 until both the House and Senate have fully debated meaningful reforms in 2018,” Sens. Patrick J. Leahy (D-Vt.), Ron Wyden (R-Ore.), Mike Lee (R-Utah), and Rand Paul (R-Ky.) said in the statement.

Intelligence Preference

The three committee-approved bills pending in the House and Senate are likely to be the basis for negotiations on a long-term reauthorization.

The FISA Amendments Reauthorization Act, introduced by House Intelligence Committee Chairman Devin Nunes (R-Calif.) and Senate Intelligence Committee Chairman Richard Burr (R-N.C.), would require the FBI to submit a request to the Foreign Intelligence Surveillance Court if a search of communications includes a U.S. person. The FISC would then have two days to rule on the legality of the query. Surveillance authorities under the bill would expire in four years.

The USA Liberty Act by House Judiciary Committee Chairman Robert W. Goodlatte (R-Va.), would increase privacy and civil liberties protections. 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 NSA director and the attorney general to sign an affidavit that certifies collected communications under Section 702 that don’t contain foreign intelligence are deleted. The bill would have a six-year sunset provision.

“The intelligence community’s preference is that Congress pass a long-term reauthorization that either makes no changes, or that expands their surveillance authorities, as the House Intelligence Committee’s bill would have done,” Robyn Greene, policy counsel and government affairs lead at the Open Technology Institute at New America, told Bloomberg Law.

The intelligence community isn’t entirely against privacy and civil liberties protections floated in the various bills. However, some changes may limit the effectiveness of the surveillance tools, the intelligence officials said.

“The Intelligence Community continues to be open to reasonable reforms to Section 702 to further enhance the already-substantial privacy protections contained in the law, but we simply cannot support legislation that would impede the operational efficacy of this vital authority,” Sessions, Wray, Coats, Pompeo, and Rogers 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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