Congress appears to be going down to the wire as four provisions in the Foreign Intelligence Surveillance Act will expire on March 15, with several lawmakers and privacy groups pushing for significant changes in government surveillance rules.
After House Judiciary Committee Chairman Jerry Nadler canceled a FISA hearing scheduled for Feb. 26, several lawmakers in both parties have pushed for Congress to rewrite the way FISA-based investigations are authorized. Also, privacy advocates have increased their pressure on Congress in recent days.
After revelations of surveillance of President Trump’s campaign in 2016, Trump allies such as Republican Reps. Jim Jordan of Ohio and Mark Meadows of North Carolina have pushed for reforms. The FBI misled the FISA court in seeking approvals for surveillance of the Trump campaign, they have argued.
The FBI “gravely abused the FISA process,” Meadows wrote in a Feb. 26 tweet. “Now, some members of Congress want to do a clean reauthorization of FISA anyway. Totally unacceptable.”
Meanwhile, Reps. Zoe Lofgren, a California Democrat, and Warren Davidson, an Ohio Republican, called on the House Judiciary Committee to pass their Safeguarding Americans’ Private Records Act, which would put new limits on government surveillance. The bill, among other things, would end a controversial surveillance program authorized in the 2001 Patriot Act that had allowed the National Security Agency to collect millions of U.S. call records before the agency reportedly suspended the program in 2018. Privacy advocates fear that the NSA could resume its call records collection unless Congress kills the program.
Their bill “pulls the intelligence programs in the direction of compliance with our Constitution,” Lofgren and Davidson wrote in a letter to Nadler.
Among the sections of the FISA law expiring on March 15 is the business records provision, which allows government agencies to obtain “tangible things,” including phone records and driver’s licenses, that are relevant to counterterrorism and other investigations. Another expiring provision is the call detail record collection program that allows the FBI, NSA, and other agencies to collect records related to telephone and mobile calls.
Even though Trump has complained about surveillance of his 2016 campaign, the Department of Justice and Office of the Director of National Intelligence appear to want Congress to extend the current FISA programs. In late February, Attorney General William Barr reportedly told Senate Republicans that he wants a reauthorization of the expiring provisions.
But the pressure to rewrite the surveillance rules isn’t coming just from inside Congress.
In late February, the American Civil Liberties Union and conservative group FreedomWorks launched a multistate digital ad campaign calling on Congress to pass surveillance reforms. The two groups also purchased ads on Fox News to appeal to conservative-leaning viewers who distrust government surveillance programs.
“The government has for too long abused its surveillance powers to wrongly spy on Americans,” said ACLU senior legislative counsel Neema Singh Guliani in a statement. “All eyes are now on Congress, which must seize the coming opportunity to overhaul our nation’s broken surveillance regime.”
Several other privacy and civil rights groups also called for more reforms.
Significant parts of FISA are “blatantly unconstitutional,” said Paul Engel, the founder of the Constitution Study, focused on educating U.S. residents about the Constitution. FISA’s authorization of broad searches of records violates the Fourth Amendment, as does the ability of surveillance agencies to search the records of people with up to three degrees of separation from an actual suspect, he argued.
“The idea of guilt by association … is anathema to a free country,” he said.
Still, Engel isn’t optimistic that Congress will make major changes. “Do I think Congress will act more honorably today than they have for the last almost 20 years?” he said. “No. Why should we expect a part of government to restrict the powers of that government without some sort of outside pressure?”
