Showdown Looming over Reform of Federal Surveillance Laws

Rep. Bob GoodlatteThe House Judiciary Committee has advanced a bill that would provide Americans modest protections from unwarranted surveillance, but falls far short of what civil liberties and privacy groups (and several legislators) demand.

It's no surprise the USA Liberty Act passed out of the committee, 27-8, yesterday, having been hammered out by committee members and lawyers. But the committee resisted amendments that would make the privacy protections for Americans stronger.

The USA Liberty Act is meant to address the pending sunset of Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments. Section 702 is one of several federal authorities for foreign surveillance by the National Security Agency (NSA) and FBI to keep tabs on potential spies and terrorists.

But Section 702 has also been abused, allowing for "backdoor searches" of communications of American citizens. These communications are collected "incidentally" during the surveillance of foreign targets and are used by federal agencies in the investigation of domestic crimes. All of it happens without a warrant with the oversight of the secretive FISA court.

After Edward Snowden helped Americans understand the full extent to which our communications and metadata were being collected by the federal government, there's been a concerted effort by civil rights groups and lawmakers, with strong support for the Fourth Amendment, to restrain the feds.

The USA Liberty Act does modestly restrict the feds and requires that they seek court orders to view these communications when looking for evidence of a crime. But it doesn't do much about the collection of the data. And there are enough exceptions to worry that little will actually change.

The Electronic Frontier Foundation warns:

But the warrant requirement is limited due to a number of troubling carve-outs. First, this court oversight requirement won't be triggered except for those searches conducted to find evidence of a crime. No other searches for any other purposes will require court oversight, including when spy agencies search for foreign intelligence, and when law enforcement agencies explore whether a crime occurred at all.

Metadata—how many communications are sent, to whom, at what times—won't require court oversight at all. In fact, the Liberty Act doesn't include the reforms to metadata queries the House had previously passed (which unfortunately did not pass the Senate). In the Massie-Lofgren Amendment, which passed the House twice, agents who conducted queries for metadata would be required to show the metadata was relevant to an investigation. That relevance standard is not in the Liberty Act.

Reps. Zoe Lofgren (D-Calif.) and Ted Poe (R-Texas), co-founders of the House's Fourth Amendment Caucus, attempted to amend the Liberty Act to end these "backdoor searches" without a warrant. Their efforts were rejected. According to The Hill, leaders of the House would not continue supporting the bill with the increased restrictions.

But it's not clear that rest of the House will support the USA Liberty Act without these reforms. Several civil rights groups, like the American Civil Liberties Union, are warning the bill needs these strong protections from searches. And members of the Republican Freedom Caucus have expressed opposition to a renewal that doesn't have strong protections for Americans against unwarranted snooping. Rep. Justin Amash (R-Mich.) tweeted that the Liberty Act, as it stands now, codifies Fourth Amendment violations in searches, so we explect a "no" vote from him.

Members of the Senate have their own ideas. Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have teamed up on the USA RIGHTS Act, which more thoroughly restricts and allows fewer exceptions to unwarranted surveillance against Americans. There's also the absolutely terrible legislation Senate Intelligence Chairman Richard Burr (R-N.C.) introduced, codifying for federal intelligence agencies surveillance rules without warrant for a host of domestic crimes and taking a massive dump on the Fourth Amendment in the process. Burr's bill seems unlikely to get anywhere, but it's worth remembering that it's out there.

What we have is essentially a game of chicken with about four or five policy vehicles heading toward one another. There are two potentially divergent outcomes. Section 702 could simply expire, which some activists would prefer, but something even the most privacy-protecting lawmakers don't want.

Alternatively, House leadership could push an unchanged reauthorization into a must-pass omnibus spending bill at the end of the year, something Rep. Jerrold Nadler (D-N.Y.) worried about yesterday as he reluctantly voted against the Poe-Lofgren amendment. Then Americans would see no surveillance reforms at all.

Chairman of the House Judiciary Committee Bob Goodlatte (R-Va.) told The Hill he doesn't know when a floor vote may happen yet, but it'll have to be soon. If Goodlatte's Liberty Act passes, it will probably end up being one of his last major actions as a congressman. He announced this morning he will not be seeking re-election next year.