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federal bureau of investigation
Privacy Advocates Alarmed as House Resumes Spying Powers Fight
Rights groups are particularly concerned about reporting that parts of the debate could be held in "secret session."
Feb 12, 2024
Privacy rights advocates and experts are sounding the alarm this week as members of the U.S. House of Representatives dive back into a contentious battle over reforming warrantless government surveillance powers that historically have been abused and consider closed-door debate.
House Republicans on Monday unveiled the Reforming Intelligence and Securing America Act and announced that the Committee on Rules will meet Wednesday to discuss the bill, which combines two previously competing proposals focused on Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702—which Congress temporarily extended with an annual defense package in December—only allows warrantless surveillance targeting foreigners located outside the United States, but Americans' data is also collected, and several agencies including the Federal Bureau of Investigation (FBI) have been widely lambasted for misusing it.
"Rushing to pass an anti-reform bill, subject only to very limited (and partially secret) debate, is a flagrant attempt to sidestep the strong, bipartisan movement for surveillance reform."
The new bill "more closely aligns with the original proposal from the House Intelligence Committee over that of its Judiciary competitor, focusing on more reforms at the FBI to address misuse of the powerful spy tool," according toThe Hill. "But it does not include Judiciary's hope for a warrant requirement—something deemed a red line for the intelligence community but nonetheless a top priority for privacy advocates in Congress."
The outlet also noted that "the process of bringing the bill to the floor will push the House to return to a previously floated idea from Speaker Mike Johnson (R-La.) to do a queen-of-the-hill-style debate format that would allow for consideration of amendments—including a potential amendment on a warrant requirement."
Also stressing the divisiveness of the warrant policy, Wireddetailed Monday:
Several aides attributed the drawn-out nature of the fight, at least in part, to the relative naivete of the House speaker on national security matters, saying that, with little experience in the area, Johnson had not previously had the opportunity to be captured by the intelligence community—powerful interests accused by congressional staffers of routinely deploying "fear tactics" to defend surveillance operations plagued by regular error and abuse.
Johnson's lack of any intelligence background, staffers say, would have likely increased his dependence on House intelligence staffers, who, while cultivating a sense of awe due to their access to national secrets, routinely behave as ambassadors between the spy agencies and regular congressional staff.
Privacy advocates inside and outside the House continue to emphasize the need for a warrant requirement. They are also concerned about reporting from Politico's Jordain Carney late Sunday that some debate may occur in "secret session."
Yup, you're reading that right.\n\nMembers of Congress are considering a "secret session" to discuss reauthorizing surveillance powers. This secrecy goes against the core principles of democracy.\n\n\ud83d\udea8Call your member of Congress NOW to tell them to debate in the open \ud83d\udcde202-224-3121.— (@)
"Most lawmakers want major reform of Section 702. The Judiciary Committee's reform bill passed out of committee on a 35-2 vote," said Elizabeth Goitein, senior director of the Brennan Center for Justice's Liberty & National Security Program. "Intelligence Committee leaders know they can't win on an even playing field, so they're trying to use secrecy to avoid reform."
"Secret law is anathema to democracies, and making law in secret is the next worst thing. Open debate is a core feature of our democratic system," she continued, noting how uncommon secret sessions are. "House members should unite in opposition to this ploy and demand open debate on surveillance reform."
Responding to Goitein on social media, exiled American whistleblower Edward Snowden declared: "Secrecy and deceit must have no place in the making of American law. This effort to revive disgraced Bush-era practices in order to thwart a *reform bill* is a scandal. A genuine scandal."
Jeramie Scott, senior counsel and director of EPIC's Project on Surveillance Oversight was similarly critical, saying: "Rushing to pass an anti-reform bill, subject only to very limited (and partially secret) debate, is a flagrant attempt to sidestep the strong, bipartisan movement for surveillance reform. The American people deserve better."
Jake Laperruque of the Center for Democracy & Technology's Security and Surveillance Project—who backed the previous House Judiciary Committee bill—cast doubt on the new legislation's prospects given opposition from not only that panel but also the far-right Freedom Caucus, which has scheduled a Tuesday afternoon press conference.
Laperruque said Monday that "I don't think you can say with any certainty" that the bill would get support from a majority of Republicans, who narrowly control the House.
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'This Is Wrong': Congress Trying to Ram Through Spying Powers Extension
Including the extension in a must-pass bill, said one critic, "would perpetuate staggering abuses of Americans' privacy, including wrongfully spying on protestors, politicians, journalists, and thousands of others."
Dec 07, 2023
Privacy rights advocates this week are sounding the alarm about a bipartisan congressional effort to imminently force through an extension of warrantless government surveillance powers despite public outrage over a well-documented history of misuse.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire at the end of the year unless it is reauthorized by Congress. The law only permits warrantless surveillance targeting foreigners located outside the United States, but Americans' data is also collected, and court documents have exposed "chilling" abuse, especially at the Federal Bureau of Investigation (FBI).
While the FBI has implemented some reforms, for years—but particularly in the months leading up to the looming expiration—campaigners have pressured lawmakers to refuse to reauthorize Section 702 or to only do so with serious changes.
"Congressional leaders should not betray the broad, bipartisan support for surveillance reform by jamming Section 702 into the NDAA."
"To extend warrantless surveillance is to extend the racial profiling of everyday Americans. It's for this reason that we can't tolerate the reauthorization of FISA Section 702—and neither should Congress," AAPI Victory Alliance declared Thursday.
AAPI Victory Alliance is among 92 civil rights and racial justice groups that wrote to federal lawmakers late last month arguing that "including in must-pass legislation any extension would sell out the communities that have been most often wrongfully targeted by these agencies and warrantless spying powers generally."
The Biden administration has been pushing for a Section 702 extension without sweeping reforms. FBI Director Christopher Wray claimed in congressional testimony on Tuesday that "loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risks. For the FBI in particular, either outcome could mean substantially impairing, or in some cases entirely eliminating, our ability to find and disrupt many of the most serious security threats."
On Wednesday evening, U.S. House Armed Services Committee Chair Mike Rogers (R-Ala.) filed the conference report of the National Defense Authorization Act (NDAA) for Fiscal Year 2024. The bipartisan compromise includes a temporary extension, which the Electronic Privacy Information Center called "a shocking attempt to entrench a controversial and sweeping surveillance authority that Congress is actively working to reform."
Sean Vitka, policy director of Demand Progress, agreed that "congressional leaders should not betray the broad, bipartisan support for surveillance reform by jamming Section 702 into the NDAA. It would perpetuate staggering abuses of Americans' privacy, including wrongfully spying on protestors, politicians, journalists, and thousands of others."
The NDAA report came just hours after the House Judiciary Committee voted 35-2 to advance the Protect Liberty and End Warrantless Surveillance Act (H.R. 6570)—which Jake Laperruque, deputy director of the Center for Democracy & Technology's Security and Surveillance Project, called "the strongest surveillance reform passed out of committee since the original FISA bill 45 years ago."
"It will end the pervasive abuse of U.S. person queries, which have been made against protesters, journalists, lawmakers, and campaign donors, among thousands of others," he said, praising the panel's broad bipartisan support for the bill. "At the same time, it is meticulously designed to retain the security value of FISA 702, such as quickly allowing queries with consent to protect victims. We urge the House to promptly bring this bill to the floor and pass it."
On Thursday, the House Permanent Select Committee on Intelligence passed the FISA Reform and Reauthorization Act, which features an eight-year extension—and, as Roll Callreported, "would require the FBI to get a probable cause warrant only before using a U.S. person term for the purpose of searching for evidence of a crime, a provision that privacy advocates argue only encompasses a small fraction of the searches."
House Speaker Mike Johnson (R-La.) wrote Thursday in a letter to colleagues that he plans to bring both panels' bills "to the floor under a special rule that provides members a fair opportunity to vote in favor of their preferred measure" next week.
Johnson said that Senate Majority Leader Chuck Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.) have committed to working "in good faith on a final reform bill that can be passed in both chambers," which the pair confirmed in a joint statement.
"To provide the necessary time to facilitate the reform process in a manner that will not conflict with our existing appropriations
deadlines and other conflicts, the NDAA conference agreement necessarily includes a short-term extension of the 702 authorities through April 19 of next year," the speaker added, as Schumer moved to set up an NDAA vote next week.
Elizabeth Goitein, senior director of the Brennan Center for Justice's Liberty & National Security Program, was among the rights advocates and lawmakers who highlighted that "it purports to be a 'short-term' reauthorization until April 19, 2024, but make no mistake: leaders are actually extending this abuse-ridden authority INTO APRIL 2025."
"It purports to be a 'short-term' reauthorization until April 19, 2024, but make no mistake: leaders are actually extending this abuse-ridden authority INTO APRIL 2025."
"They claim that Congress needs more time to consider reforms, but that's clearly untrue," Goitein explained on social media, citing the House Judiciary Committee bill. "But even if December 31 came and went with no reauthorization, the government would still be able to conduct surveillance into April 2024. That's because the FISA Court authorizes Section 702 surveillance for one-year periods and the law clearly states that the court's authorizations remain in effect until they expire, regardless of what happens with Section 702 itself."
"The court's April 2023 authorization will thus greenlight surveillance into April 2024," she said. "So why are congressional leaders doing this? Because that four-month extension, in practice, will be a *16-month extension.* Between now and April 19, the administration will go back to the FISA Court and get ANOTHER one-year authorization which means the [government] gets a total of 16 extra months to continue conducting warrantless backdoor searches for Americans' communications."
"How do we know this is what congressional leaders actually intend? Because if they wanted to extend Section 702 for four months WITHOUT creating a de facto 16-month extension, there's a very easy way to do that," she stressed. "They could simply include a provision stating that any FISA Court authorization issued during that four-month period would ALSO expire in April 2024. They're well aware of that option. And they appear to have rejected it."
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Supporters of Government Surveillance Reform Act Aim to End 'Litany of Abuse'
"For too long, federal intelligence and law enforcement agencies have had nearly unchecked access to Americans' personal data," said Rep. Zoe Lofgren.
Nov 07, 2023
Answering years of demands for significant reforms, a bipartisan group of U.S. lawmakers on Tuesday unveiled a highly anticipated bill designed to crack down on the federal government's "disturbing" misuse of surveillance authorities.
The Government Surveillance Reform Act (GSRA)—led by Sens. Ron Wyden (D-Ore.) and Mike Lee (R-Utah) along with Reps. Warren Davidson (R-Ohio) and Zoe Lofgren (D-Calif.)—takes aim at authorities including Section 702 of the Foreign Intelligence Surveillance Act (FISA), which will expire at the end of 2023 unless reauthorized by Congress.
Section 702 allows warrantless surveillance of electronic communications targeting foreigners located outside the United States, to acquire foreign intelligence information. However, Americans' data is often collected too, and court documents have revealed "chilling" abuse, particularly at the Federal Bureau of Investigation.
"Americans know that it is possible to confront our country's adversaries ferociously without throwing our constitutional rights in the trash can. But for too long surveillance laws have not kept up with changing times," Wyden said in a statement.
"Our bill continues to give government agencies broad authority to collect information on threats at home and abroad, including the ability to act quickly in emergencies and settle up with the court later," he added. "But it creates much stronger protections for the privacy of law-abiding Americans, and restores the warrant protections that are at the heart of the Fourth Amendment."
Specifically, as a fact sheet from the sponsors details, the bill renews the controversial section of FISA for four years but also "reforms 702 to protect Americans from warrantless backdoor searches, ensures that foreigners aren't targeted as a pretext for spying on the Americans with whom they are communicating, and prohibits the collection of domestic communications."
The bill would also extend similar reforms to spying activities under Executive Order 12333, ban the government from buying Americans' data from brokers, and require warrants for surveillance of U.S. citizens' location data, web browsing, and search records, including artificial intelligence assistants such as Alexa and Siri.
"It would be unwise for members of Congress to greenlight another major surveillance reauthorization without carefully considering and enacting surveillance reform measures," Lofgren argued. "For too long, federal intelligence and law enforcement agencies have had nearly unchecked access to Americans' personal data."
"Our bipartisan, bicameral comprehensive and calibrated legislation provides reform solutions sought for decades," she continued. "With widespread support from across the political spectrum the Government Surveillance Reform Act would dramatically curb surveillance abuse and protect Americans' civil liberties, while preserving national security."
In addition to co-sponsors from both parties, the bill is backed by dozens of rights groups—including Demand Progress, whose policy director Sean Vitka declared that "this is the most significant opportunity for protecting Americans from warrantless government surveillance in generations, and the GSRA rises to the challenge."
Other groups supporting the GSRA include the ACLU, Brennan Center for Justice at New York University School of Law, Center for Democracy & Technology (CDT), Electronic Frontier Foundation, Electronic Privacy Information Center, Fight for the Future, and Free Press Action.
Jake Laperruque, deputy director of the CDT's Security and Surveillance Project celebrated that the bill would "end the litany of abuse of FISA 702 we've seen year after year and close serious loopholes, all while preserving the operational value needed for national security."
Free Press Action vice president of policy Matt Wood similarly applauded the bill as "a true milestone in the effort to rein in abuse of foreign intelligence gathering tools," and highlighted that when agencies misuse such tools, "they disproportionately target people of color, recent immigrants, members of religious groups, and dissidents."
Given the history of "countless abuses," ACLU senior policy counsel Kia Hamadanchy concluded that "Congress should not vote to reauthorize Section 702 without the critical reforms contained in this bill."
Elizabeth Goitein, senior director of the Brennan Center's Liberty & National Security Program, pointed out that "if passed, this would be the most significant surveillance reform legislation since FISA itself," which was enacted in 1978.
Goitein and her colleague Noah Chauvin also stressed that there is still room for improvement, explaining at Just Security on Tuesday that the legislation "does not include all of the reforms sought by the Brennan Center (where we both work) and a cross-partisan coalition of 30 other privacy, civil rights, and civil liberties organizations. Most notably, the bill does not narrow the scope of foreign intelligence surveillance."
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