House hurtles toward showdown over expiring surveillance tools

Privacy advocates and national security hawks in the House of Representatives are at loggerheads over how to overhaul and extend a controversial set of surveillance powers that expire next week, in what is the latest in a series of showdowns over Section 702 of the Foreign Intelligence Surveillance Act.  

The latest act in that drama comes on Tuesday afternoon, when the House Rules Committee is scheduled to consider which amendments it will send to the House floor for a vote, when that body takes up a bill to renew the surveillance authorities under Section 702.

Foremost among those prospective amendments is a requirement for U.S. government officials to get a warrant to query the communications of Americans collected under the authority of Section 702. Privacy hawks say such a requirement is necessary to overhaul a law that has been implicated in past abuses, such as improper searches of government officials and protesters. Biden administration and law enforcement officials argue such a requirement would badly inhibit their ability to conduct timely queries, including in cybersecurity cases.

Reformers seeking the most dramatic changes to Section 702 had sought to include a provision to prevent commercial data brokers from selling consumer information to law enforcement, but that measure looks likely to be excluded this time.

That could further inflame privacy-oriented lawmakers on both sides of the aisle and scuttle attempts to keep Section 702 in place. 

The effort to rein in Section 702 has made unlikely bedfellows of progressive lawmakers on the left, longtime conservative opponents of the measure and allies of former President Donald Trump on the far right, where Speaker Mike Johnson’s unwillingness to back the 702 overhaul effort may further rouse discontent toward the Louisiana Republican within his caucus. 

As the debate over 702 has become increasingly politically fraught, it’s entirely possible that the process falls apart this week with the House failing to pass any meaningful legislation on the issue — something that’s happened twice already in recent efforts to renew and amend Section 702 for the long term.

The 702 authorities are set to expire April 19 after a short-term extension was passed right before the end of 2023.

Referencing the film “The Good, the Bad and the Ugly,” Jake Laperruque of the civil liberties group the Center for Democracy and Technology said there were three potential scenarios for how this week’s votes on 702 might play out. “The good” would be if the data broker proposal gets a vote, “the bad” is if the data broker language doesn’t get a vote and “the ugly” is if the whole process falls apart and it leaves congressional leadership with the belief that it must pass a “clean” extension of Section 702.

Johnson said in a letter last week that inaction in the House could lead the Senate to “jam us” with the last scenario.

As written, the bill at the center of the House debate would implement a number of provisions that senior administration officials described in a call with reporters late last week as “significant reforms” and “the most robust of any authorization cycle of 702,” such as a requirement that an FBI supervisor or attorney review and approve all U.S. person queries.  

Privacy hawks view those changes as insufficient, and some of the proposed amendments could make the bill worse, said Laperruque, who is the deputy director of CDT’s Security and Surveillance Project. One amendment, from the leaders of the House Intelligence Committee, Chairman Mike Turner, R-Ohio, and Jim Himes, D-Conn., would expand the definition of “electronic communication service provider,” which privacy advocates fear would potentially lead to a drastic expansion in the kinds of companies that would have to assist in conducting U.S. government surveillance.

But much of the attention, should the bill advance to the floor, will be on an amendment requiring warrants involving U.S. person queries. Section 702 involves the targeting of people overseas but who might sometimes be communicating with people in the United States.

On Tuesday, FBI Director Christopher Wray renewed the push from national security officials to reject a warrant requirement.

“A warrant requirement would be the equivalent of rebuilding the pre-9/11 intelligence ‘wall,’” Wray told the American Bar Association, according to a copy of his prepared remarks. “As the threats to our homeland continue to evolve, the agility and effectiveness of 702 will be essential to the FBI’s ability, and really our mandate from the American people, to keep them safe for years to come.”

Glenn Gerstell, a senior adviser at the Center for Strategic and International Studies who is a former general counsel of the National Security Agency, said a warrant requirement would be “particularly devastating” for cybersecurity cases, where it could lead to days’ worth of delays to get a warrant in a fast-moving investigation of a Russian ransomware gang.

On the other side of the debate, Republicans on the House Judiciary Committee are working to ignite the Republican base against Section 702, writing on the social media platform formerly known as Twitter that a warrant requirement for the law would “make it harder for Joe Biden’s intel friends to SPY on you.”

In making their case for renewing Section 702, Biden administration officials have described Section 702 as an essential tool in combating cybercrime, and while the proposed amendment to add a warrant requirement to query the communications of Americans does include an exception for cybersecurity cases, Gerstell said it would “not be adequate.”

Both sides of the debate have spent recent days pressing their case. Ohio Republican Rep. Warren Davidson, who has been at the forefront of pushing for the data broker restrictions, reposted a tweet by the Gun Owners of America contending that the House needed to pass those restrictions “to protect gun owners from rogue bureaucratic agencies!”

While the House could vote on the restrictions on data brokers selling information to law enforcement separately under an expedited procedure, that procedure would require a two-thirds vote for passage and the chances that such legislation would move forward in the Senate, where floor time is more limited, is unlikely, noted Laperruque.

Turner, meanwhile, took to CNN over the weekend. “All Americans would want us to try to make certain that we keep ourselves safe from these outside terrorist groups and organizations,” he said. “We are not spying on Americans. This is not a warrantless surveillance program.”