Last week, the Senate passed a bill that would reauthorize the Foreign Intelligence Surveillance Act (FISA) with a few changes, sending it back to the House for approval before it hits the president’s desk. However, whereas the House originally passed the bill in March with large bipartisan support, that support has since evaporated, causing leaders to postpone a vote on the bill indefinitely.
FISA is the central law determining how the government can gather secret information about foreign agents and their activities in the U.S. In the present day, it is mostly used to investigate planned terrorist attacks and prevent them from taking place by granting the FBI power to surveil electronic and physical records upon approval by the Foreign Intelligence Surveillance Court (FISC), which was created specifically to hear these secretive cases.
This law, while originally intended to protect Americans from unlawful surveillance, should go further in guaranteeing constitutional protections that we enjoy in all other circumstances. The Senate managed to pass one such amendment, making it easier for the FISC to appoint a lawyer representing the interests of a surveillance target, but failed to pass one which would prohibit using one of the renewed tools to obtain search history. While this amendment received a 59-vote majority, it failed to clear the 60-vote threshold used for most Senate legislation.
Anyone who has used an incognito tab is likely familiar with the impact of someone’s browser history. The fact that such personal information can be obtained without a warrant is a stain on the constitutionality of our modern surveillance systems, and any renewal of FISA tools should make changing that a high priority.
The reauthorization bill failed to gain enough support in the House for a few reasons, centered on disagreements between civil liberties advocates and law enforcement advocates. After the Senate passed its amendment, the Department of Justice announced that it felt the amendment went too far in, tying the hands of investigators. Later, Attorney General William Barr went further in saying that he would recommend a veto if the Senate version passed the House.
On the other hand, the House attempted to revive a more limited version of the search history protection which would only apply to Americans, but the progressive caucus decided to oppose the bill, feeling its protections weren’t strong enough.
Now having lost support from the Department of Justice and civil liberties advocates, the bill was on shaky ground when President Trump announced via tweet that he would veto the current bill, without specifying what objections he had. This caused support to vanish among Republicans, forcing the postponement of the bill.
Trump has criticized FISA in the past because a small part of the Russia investigation leading to his impeachment included a FISA application with numerous holes in it. This would indicate that the president is in favor of even more restrictions on surveillance, in opposition to what his attorney general has said, although Trump has not directly contradicted Barr.
In short, this bill seems to be going nowhere fast. While that may seem a good thing for privacy advocates, any ongoing investigations which use the expired tools can still continue, and without passage of any bill, no productive changes can be made to the way the government surveils foreign and domestic people.
When the House returns to work on the bill, they must ensure it defends the spirit of lawful searches that the Constitution enshrines. While there is a serious need for modern intelligence in the information era, surveillance should not trample on people’s inherent right to privacy. A bipartisan majority of senators managed to support multiple amendments to this point, and the House should run with that as it moves forward in the bill reconciliation process.
People’s lives are increasingly dependent on the internet for work, shopping, entertainment and socializing. We have to ensure that protections for our physical records will extend fully to our activities online, or our technological progress will only send us backwards in our access to the fundamental civil liberties which make our democracy work.
