Senate approves extension of FISA surveillance shortly after deadline

The Senate on Saturday morning approved a two-year reauthorization of the Foreign Intelligence Surveillance Act’s (FISA) warrantless surveillance program, after hours of intense and sometimes bitter debate on the Senate floor, narrowly preventing an important capability of national intelligence collection was erased.

Senators voted 60-34 to send the bill to President Biden’s desk shortly after the midnight deadline for a lapse in expanded surveillance powers.

The legislation extends for another two years the government’s ability to spy on foreigners located abroad, a process that also sweeps the communications of Americans with whom it has contact.

The bill, the America Intelligence and Security Reform Act, enacts numerous reforms to Section 702 of FISA, although it falls short of privacy hawks’ expectations.

“This is not a clean reauthorization of the existing bill. This is a reform bill that fixes many of the problems we face with Section 702,” noted Senator John Cornyn (R-Texas), a member of the Senate Intelligence Committee, on the floor on Friday.

The bill targets what privacy advocates consider abuses of the FBI’s 702 database by drastically selecting who can approve a query, reducing that number from about 10,000 to just 550 people, and increases civil and criminal penalties for any person who misuses the tool.

And it codifies some FBI reforms aimed at reducing abuse, with the number of Americans searched in the 702 database dropping considerably since the agency changed its search portal from automatically opting agents to query 702 data.

“If enacted, the reforms included in this bill would be the most comprehensive set of reforms ever enacted,” said Senate Intelligence Chairman Mark Warner (D-Va.).

But some were skeptical the measures would be enough.

Debate over the bill has exposed deep divisions within both parties over a 15-year-old program that proponents consider vital to national security and that critics argue is a serious violation of Americans’ right to privacy.

The FISA surveillance program appeared to be headed for a temporary lapse until Senate Majority Leader Chuck Schumer (DN.Y.) announced a breakthrough on the Senate floor after 9 p.m. Friday.

“All day long, we persisted and persisted and persisted in hopes of achieving a breakthrough, and I’m glad we did,” Schumer announced from the floor with relief in her voice.

“Allowing FISA to expire would have been dangerous. It is an important part of our national security toolkit and helps law enforcement stop terrorist attacks, drug trafficking and violent extremism,” he said.

Schumer faced strong opposition from within his own caucus, including from Sen. Ron Wyden (D-Ore.), a senior member of the Senate Intelligence Committee, who vowed to “do everything in my power to prevent it from passing the Senate.” ”.

Wyden and other critics argued that law enforcement agencies abused the expanded surveillance power authorized by Section 702 of FISA.

“Searches were carried out against American protesters, political campaign donors and even people who simply reported crimes to the FBI. The abuses were extensive and well documented,” Wyden argued to colleagues.

He offered an amendment to eliminate language added in the House that will expand the types of companies required to comply with government surveillance requests.

Privacy hawks say the House’s language is poorly written and will recruit a wide range of companies into spying.

But Wyden’s effort to achieve it failed 34 votes to 58.

Schumer also faced a threat from Senate Democratic leader Dick Durbin (Ill.), who joined Sen. Kevin Cramer (R-N.D.) on an amendment that would require the government to obtain a warrant before reviewing any communications incidentally collected from Americans. .

The proposed change was a top priority for privacy hawks, but the intelligence community said it would destroy the tool and prevent them from acting on the real-time information. It failed by a vote of 42 to 50.

The House-passed bill had strong support from members of the Senate Republican leadership team, including Senate GOP leader Mitch McConnell (Ky.) and Cornyn.

McConnell argued on the Senate floor that the House needed to expand the types of electronic communications covered by the law because when it was first written, “the Internet was in the dark ages.”

Cornyn, a member of McConnell’s leadership team, hailed FISA’s expanded surveillance authority as “the most important law most Americans have never heard of” and “an essential tool for our intelligence community to protect the American people against a whole series of threats.”

GOP leaders clashed with conservatives within their conference, such as Senators Rand Paul (R-Ky.) and Mike Lee (R-Utah), who attempted to amend the bill and threatened to extend the debate beyond Friday’s deadline if they didn’t. have the chance to vote on the changes.

Paul argued that the FISA program undermined Americans’ right to due process, while Lee said the House-passed bill had “more problems than a math textbook.”

“Egregious Fourth Amendment violations against U.S. citizens will increase dramatically if this bill passes into law,” Lee warned.

Paul offered one amendment to prevent intelligence and law enforcement agencies from purchasing Americans’ data from third-party vendors, and a second to impose strict limitations on surveillance of Americans under the authority of the Foreign Intelligence Surveillance Court.

Both proposals failed, by votes of 31 to 61 and 11 to 82, respectively.

Lee offered an amendment to require the Foreign Intelligence Surveillance Court to appoint outside counsel to defend the rights of a U.S. person the government wants to covertly surveil. He also reportedly required government officials to appear before the FISA court to disclose factual evidence that could call into question the accuracy of their statements.

It also failed, although it had already been approved in the Senate with 77 votes in 2020.

The broader legislation, which passed the House 273-147 a week ago, includes provisions that expand the use of Section 702, including a House-approved amendment that would allow the tool to be used to screen anyone entering the country as a traveler. or migrant.

It was something that the provision’s sponsor, Rep. Mike Waltz (R-Florida), said would allow the government to “look at his background and make sure he’s not a terrorist.”

And the bill ventured into another section of FISA that establishes the framework for conducting domestic surveillance — provisions all added to address the 2016 spying on Trump campaign adviser Carter Page.

Unlike Section 702, domestic espionage requires a warrant, and under the legislation, law enforcement authorities could not use political opposition research or media reports in a warrant application.

This targets two issues underlying the warrant to spy on Page, although a subsequent review concluded that the FBI did not include evidence that contradicted its premise of trying to surveil him.

Another controversial provision of the bill includes provisions that would notify some members of Congress about searches involving lawmakers — something critics have described as “for me but not for you” protections.

The bill was approved by the House after a group of 19 Republican Party members failed in a procedural vote to advance debate on the legislation – a move that did not mark any of their political demands.

House conservative rebels, however, persuaded Speaker Mike Johnson (R-La.) to extend FISA 702 for just two years, instead of the original five years initially called for in the bill.