House advances spy power reauthorization bill without warrant measure

The House of Representatives passed a bill Friday that reauthorizes a contested surveillance power but leaves out a key warrant requirement demanded by privacy and civil liberties advocates.

The measure, titled the Reforming Intelligence and Securing America Act, extends Section 702 of the Foreign Intelligence Surveillance Act, a statute that lets spy agencies scoop up foreigners’ communications abroad to be used in terrorist investigations but has come under fire for inadvertent targeting of American communications and other documented misuses.

The warrant requirement that would have directed intelligence operatives to seek legal permission before diving into collected American communications failed to pass in a nail biting 212-212 vote. The reauthorization without that requirement now goes to the Senate, which will have a week to pass the measure before the original statute sunsets.

The deadlock on the warrant requirement was unexpected, as civil liberties groups who have vied for congressional support over the past several months seemingly lost key allies when the vote came down.

Some of those losses were unplanned. Rep. Debbie Lesko, R-Ariz., was out with the flu and would have voted in favor of the warrant requirement, she tweeted an hour after the full measure passed in the House.

“This amendment is not about Americans’ inboxes and outboxes,” said Rep Mike Turner, R-Ohio, a staunch 702 supporter who heads the House Intelligence Committee in discussions on the House floor. “This is not about Americans’ data. This amendment is about Hezbollah’s data...This is dangerous. It will make us go blind.”

The bill extends 702 authorities for another two years, allowing the intelligence community to leverage what it has called a vital national security tool that’s helped the U.S. thwart cyberattacks and other threats targeting American infrastructure.

The warrant provision was strongly backed by privacy and civil rights organizations on both sides of the political aisle, as well as a pact of Republican and Democratic lawmakers, but spy chiefs have publicly said that doing so would gut the tool’s effectiveness because it slows down ongoing national security investigations.

A similar attempt to get the bill primed for discussion tanked in a 193-228 vote on Wednesday. But the House Rules Committee, which deliberates the final components of legislation before being sent to debate on the full House floor, tried a second time late Thursday night.

The White House has expressed strong support for the measure as passed. “Congress has a responsibility to the American people to renew one of the nation’s most critical intelligence authorities before it expires on April 19,” a senior administration official told Nextgov/FCW. 

The Reforming Intelligence and Securing America Act contains what the administration says are meaningful reforms that would prohibit queries for crimes not related to national security and codify a slew of other remediation steps already taken by the FBI to curtail misuse of the authority. 

Other amendments adopted in the final bill include a quarterly directive for the FBI to tell Congress the number of U.S. person searches it conducts, as well as provisions to expand the definition of foreign intelligence to include narcotics trafficking and enable the tool’s use in vetting foreigners entering the U.S. It also takes on an amendment that ends “abouts” collection, which is the practice of scooping up conversations that coincidentally mention foreign targets. “Abouts” collection activities were banned by the NSA in 2017.

But civil liberties representatives deem it a reform bill in only its name because it does not mandate the FBI or any other federal agency seeking to access the stored communications of Americans collected under 702 first get a warrant from a judge.

“By expanding the government’s surveillance powers without adding a warrant requirement that would protect Americans, the House has voted to allow the intelligence agencies to violate the civil rights and liberties of Americans for years to come,” said ACLU senior policy counsel Kia Hamadanchy.

In September, the government-mandated Privacy and Civil Liberties Oversight Board found that the U.S. provided “little justification” for the value of warrantless searches of Americans’ conversations under 702, after scrutinizing classified information provided to them about searches conducted under the statute.

Headline-making 702 infringements have galvanized much of the privacy world and privacy-centric lawmakers, including instances where it was used to surveil Black Lives Matter activists and participants in the Jan. 6, 2021 attack on the U.S. Capitol.