Tom Williams/CQ Roll Call via AP Images
Reps. Matt Gaetz (R-FL), center, and Chip Roy (R-TX) talk with reporters outside the U.S. Capitol after the House reauthorized Section 702 of the Foreign Intelligence Surveillance Act on Friday.
The House of Representatives voted on Friday to reauthorize a new version of the Foreign Intelligence Surveillance Act (FISA) Section 702, with provisions that amount to the greatest expansion of government surveillance powers since the Patriot Act of 2001.
The bill, which is intended to retain a tool for intelligence on foreign subjects, would expand the scope of backdoor searches on U.S. persons by allowing the government to target immigrants traveling to the U.S., and seize a broad range of companies’ information on Americans, including data centers, commercial real estate landlords, and other communication equipment operators. Members of Congress, however, will get a special exemption from some of Big Brother’s all-seeing eye because of a provision stating that politicians must be notified when a search query is conducted on them without a warrant, unlike the rest of the public.
Critically, an amendment backed by reformers, which would have added a requirement that government authorities need to obtain a warrant before spying on American citizens, was narrowly defeated when it ended in a 212-212 tie on the House floor. This warrant requirement is the core issue at the heart of a fight that’s been raging for over a decade about government overreach and violation of civil liberties via Section 702.
“This failure to protect Americans’ privacy may well have just handed Donald Trump dramatically expanded warrantless surveillance powers, while defeating the single meaningful privacy reform that remained in the debate by the slimmest conceivable margin,” said Sean Vitka, policy director of Demand Progress, in a statement.
This new surveillance apparatus being handed to the government was cleared through by the leadership of both parties after several days of negotiations this week. On Wednesday, a procedural rule paving the way for the floor vote failed to pass because of a variety of concerns about what it included. Leadership changed very little about the substance of the text other than agreeing that it would sunset over a shorter horizon, two years instead of the usual five years.
That cosmetic change assured enough members for it to clear a rule vote on Friday; it was sold to the Freedom Caucus members who previously blocked the rule as giving Donald Trump an opportunity to further reform FISA should he get elected president again.
After several amendments were dealt with, with all of those proposed by the status quo–minded House Intelligence Committee passing and those proposed by the pro-reform Judiciary Committee failing, the final bill easily passed, 273-147. It will now go to the Senate, where there could be changes. After the House bill passed, Sen. Ron Wyden (D-OR) put out a statement promising to “do everything in [his] power” to stop its passage. Wyden is just one voice though, and the reauthorization is ultimately likely to make it through and then get signed into law by President Biden.
The warrant amendment’s failure begins with several high-ranking members of leadership in both parties, who’d previously backed the reform but then flipped sides on Friday to crush it.
The National Security Council and other intelligence agencies have long been hostile to any erosion of their powers.
House Speaker Mike Johnson (R-LA), as recently as last year, voted for the exact same warrant requirement, and then said earlier this week that he opposed it. House Minority Leader Hakeem Jeffries (D-NY) was more coy about his about-face, but also voted no despite his past support for identical legislation. In fact, the entire Democratic leadership, past and present, voted against the amendment. Former Speaker Nancy Pelosi (D-CA), who had Intelligence Committee experience in the past, also reversed course and even went so far as to deliver a chilling speech on the House floor during the debate, claiming that Section 702 needed to pass because it could have prevented 9/11.
Several more Democrats turned their backs on civil liberties and privacy reformers to provide the final kill shot for reining in government surveillance. In particular, Reps. Ted Lieu (D-CA) and Joe Neguse (D-CO), who both sit on the House Judiciary Committee where this amendment originated, voted for it in the committee markup but against it on the floor.
The day before the vote, the Congressional Progressive Caucus announced its support for the warrant requirement, a decision that requires a two-thirds approval by the caucus members. Despite the caucus’s broad support for the warrant requirement, numerous members went against the caucus’s wishes and rejected it on Friday. Prominent caucus members voting no included Reps. Jamie Raskin (D-MD), Steve Cohen (D-TN), Madeleine Dean (D-PA), and Andy Kim (D-NJ)—the majority of whom supported it in the past.
Kim is one of several House Democrats running for Senate who voted against the warrant amendment. Others include Reps. Colin Allred (D-TX), David Trone (D-MD), and Adam Schiff (D-CA). Schiff’s two opponents for the California Senate seat, whom he defeated in March—Reps. Katie Porter (D-CA) and Barbara Lee (D-CA)—both voted for the amendment.
What might account for this pivot by many Democrats is that National Security Adviser Jake Sullivan and Attorney General Merrick Garland were personally calling up members of the caucus on the day of the vote, urging them to vote against the amendment. The National Security Council and other intelligence agencies have long been hostile to any erosion of their powers, and claim a mere warrant requirement on American citizens would lead to all kinds of national-security risks, at once ill-defined and all-consuming.
Those fearmongering threats were repeated on the House floor, where members of the House Intelligence Committee drummed up threats from Hamas, Russian attacks, or even China.
In one notable exchange, ranking member of the Intelligence Committee Rep. Jim Himes (D-CT) echoed private messages he’d been sending to individual members that the warrant requirement was an “extreme amendment” opposed by the Privacy and Civil Liberties Oversight Board, set up in the wake of 9/11. This was false, and Rep. Pramila Jayapal (D-WA) called him out on the fact that the PCLOB has explicitly said a warrant would probably be a good idea.
Other than the warrant requirement, another reform to close what’s known as the data broker loophole was stripped out by Speaker Johnson from the base text late last week. Removing language from the bill about commercial information made the legislation not germane for any amendments about data brokers.
According to sources, House leadership promised a vote next week on the Fourth Amendment Is Not for Sale Act, which would ban data broker purchases that circumvent the Fourth Amendment. However, that would be a stand-alone vote that, even if passed, would not guarantee a companion vote in the Senate. So it may be mostly symbolic.
The Intelligence Committee’s amendments all passed by wide margins, likely because many Republicans who’d voted for the warrant requirement voted for the other amendments too. The Intelligence Committee’s changes to FISA expand backdoor search queries by the government to include any narcotics trafficking and immigrants traveling to the U.S. Government will also be able to compel new kinds of companies to hand over data.
