Vote on FISA Legislation Expected This Week in the House

It’s unclear what provisions the lower chamber will consider from the House Intelligence Committee and the House Judiciary Committee. The two committees have been at odds over including a warrant requirement and provisions restricting intelligence agencies from buying information from data brokers. The House in December abandoned potential votes on dueling bills from the committees (see 2312120073) and instead voted to extend the Foreign Intelligence Surveillance Act and Section 702 through April 19 (see 2312140052).

House Judiciary Committee Chairman Jim Jordan, R-Ohio, told us in December he and ranking member Jerry Nadler, D-N.Y., want an up-or-down vote on the question of a warrant requirement (see 2312200057). Sens. Dick Durbin, D-Ill., and Mike Lee, R-Utah, have since introduced legislation with a warrant requirement. While the Senate Intelligence Committee filed legislation without the requirement, Chairman Mark Warner, D-Va., told us previously he’s open to a vote on the provision.

The Senate “must be ready to act quickly on a bipartisan basis to ensure these vital national security authorities do not lapse,” Senate Majority Leader Chuck Schumer, D-N.Y., said in a Dear Colleague letter Friday. He noted the April 19 deadline and the House “working on a path forward for their legislation.” Offices of party leaders at the Judiciary and Intelligence committees in both chambers didn’t comment Friday.

Congress can protect civil liberties and national security by passing the compromise bill from Durbin and Lee, said New America Open Technology Institute Policy Director Prem Trivedi. The Security and Freedom Enhancement (Safe) Act would implement a “point of access” warrant requirement and would allow data broker deals if officials obtain a warrant, he noted. “These are members of Congress that take very seriously national security concerns,” he said. “Their goal is not to hamstring the FBI.”

Creating a domestic warrant requirement for the FBI’s foreign intelligence surveillance authority would “paralyze” efforts to combat “fast-moving threats” abroad, FBI Director Christopher Wray told the Senate Judiciary Committee in December (see 2312050054).

The House Judiciary Committee’s bill is “far more comprehensive” than any of the competing bills, said Patrick Eddington, Cato Institute senior fellow in homeland security and civil liberties. If enacted, it would “represent the single most important electronic surveillance reform measure in the post-9/11 era,” he said, referencing the warrant requirement and the data broker provision. But even if it passes, there are a multitude of unconstitutional programs run by intelligence and law enforcement agencies, he said: “We’d still have massive domestic surveillance problems that need fixing as well.”

Section 702 allows intelligence agencies to gather “unique insights” on foreign terrorists, spies, cyber criminals and drug traffickers, Director of National Intelligence Avril Haines told the Senate Intelligence Committee in March. DNI supports changes that “bolster the compliance and oversight regimes in place, while preserving the operational agility that is vital to keeping the nation safe,” she said.

Common Cause wants to see the House take up the House Judiciary Committee’s proposal, said Ishan Mehta, the group's director-Media and Democracy Program. He argued the House Intelligence Committee’s proposal would maintain the status quo and even expand some of the FBI’s 702 authorities.

The House Intelligence bill is “designed to do nothing,” said Electronic Privacy Information Center legal fellow Chris Baumohl. Voting on the warrant requirement and data broker provisions is “vital,” he said, but House Intelligence has shown no support for doing so, which puts any compromise “in jeopardy.”