Congress will return from its week-long Thanksgiving break facing a rapidly-shrinking timeline to reform and renew an authority the intelligence community says is critical to identifying and disrupting terrorist plots.
The key piece of the law, known as Section 702 and part of foreign surveillance measures passed in 2008, is set to expire at the end of the year. It allows the NSA to collect the texts and emails of foreigners abroad without an individualized warrant — even when the subjects communicate with Americans in the U.S.
Throughout the fall, privacy advocates on Capitol Hill pushed for changes to the law to curtail what critics say is an abuse of Americans’ Fourth Amendment protections — a push that seemed to gain some momentum despite the objections of the Trump administration.
House Judiciary Chairman Bob Goodlatte (R-Va.) has long said that a clean reauthorization of Section 702 would not pass the House, where the powerful Freedom Caucus has banded together with privacy-minded Democrats to advocate for tighter restrictions on how government investigators can use data gathered under the program.
But with just a few weeks left until the Dec. 31 deadline, even those tracking the debate closely aren’t sure what reforms, if any, will see the floor in either chamber.
The Judiciary Committee earlier this month voted to pass its package to extend the law with some modest reforms — tweaks that the Freedom Caucus, long seen as the most likely roadblock to a clean reauthorization, says don’t go nearly far enough.
But asked by The Hill after the vote if they would be able to block the measure, Rep. Jim Jordan (R-Ohio) had a three-word answer: “I doubt it.”
In the Senate, Sen. Dianne Feinstein (D-Calif.) failed to push through additional restrictions in an Intelligence Committee vote last month. Like the Freedom Caucus, some privacy advocates saw her as their best chance in the chamber of pulling the votes needed to make significant changes.
She told The Hill: “I tried — and I didn’t do it. I lost.”
Feinstein voted to advance the underlying bill out of committee after her amendment failed and like Jordan, she is pessimistic about her chances of forcing changes if Senate Majority Leader Mitch McConnell (R-Ky.) brings it to the floor for a vote — something that’s far from certain.
“I could do it on the floor — not that I’d win it, but I’d try,” she said.
Even the future of the Judiciary proposal — already a compromise measure seen as the most likely vehicle for modest reforms — appears in some jeopardy. The House Intelligence Committee, which shares jurisdiction over Section 702, is not on board with the so-called Liberty Act and in quiet talks with leadership about the future of the law
Those discussions have raised alarm bells amongst Liberty supporters, who are fearful that leadership will attach a watered-down version of the bill to must-pass legislation at the end of the year.
“We are concerned by reports that, over the coming break, your office will meet with the House Permanent Select Committee on Intelligence ‘to chart a path forward’ on Section 702,” a bipartisan group of Judiciary lawmakers wrote in a letter to Speaker Paul Ryan (R-Wis.) last week.
“We believe that you will meet resistance on any measure that further weakens the privacy protections built into the USA Liberty Act.”
House lawmakers could pursue a short-term extension of the law, to allow the two committees to iron out their differences — but most lawmakers are not keen to place the NSA program in legal limbo.
In the Senate, close watchers of the debate have long suspected that McConnell will wait to see what the House, with its weightier group of reform advocates, winds up passing. Some speculate he may follow a version of the playbook he used in a failed 2015 bid to pass a clean reauthorization of the Patriot Act — wait for the House to go first, then try to pass a clean renewal at the last minute in an attempt to jam it through the lower chamber.
But that gambit resulted in a reform measure known as the Freedom Act and now, as he was then, McConnell will likely be forced to accept at least some changes to the existent authority — a clean reauthorization is almost certainly a nonstarter in the House.
At issue is whether federal investigators should be required to obtain a warrant before searching databases of 702-derived data for Americans’ information —something permitted under current law.
The Liberty Act would require criminal investigators to obtain a court order before viewing the content of any Americans’ communications collected under the NSA program — but would not require a warrant to search the database in the first place, the broad change sought by privacy advocates. It would also not put any restrictions on queries in national security cases, which constitute the vast majority of searches.
The Senate Intelligence Committee legislation, favored by leadership, includes some small reforms but eschews a warrant requirement entirely. House lawmakers have characterized that bill as dead on arrival in the lower chamber.
Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) have introduced a companion measure to Liberty that would require government investigators to obtain a warrant before reviewing communications to or from Americans gathered under the program, in both criminal and national security cases, but it’s seen as having little chance of passage.
Supporters of the Leahy-Lee legislation hope it might put pressure on lawmakers to include more privacy protections than currently written in the Intelligence Committee legislation. House leadership has already signaled that a warrant requirement to search the database for a U.S. person is a nonstarter.
“We have been assured in explicit terms that if we adopt this amendment today, leadership will not permit this bill to proceed to the House floor,” ranking Judiciary member John Conyers (D-Mich.), who crafted the Liberty Act with Goodlatte, said during the markup of the bill.
Liberty supporters say they’re only mildly concerned that leadership will try to jam through merely Potemkin reforms, citing the resolve of those seeking more meaningful changes. In their letter to Ryan, Reps. Jim Sensenbrenner (R-Wis.), Conyers, Poe and Lofgren insisted that a clean reauthorization of Section 702 would till not pass the House.
“All four of us agree on this point: we will work together to oppose any effort to reauthorize Section 702 that does not include meaningful reform.”
But the clock is ticking — raising the odds that the committee’s work will be swept aside in a year-end flurry of action on tax reform, potential immigration legislation and government funding bills. “The biggest concern for us is the time crunch,” a House aide told The Hill.