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Competing Section 702 surveillance bills on collision path for US House floor

Two competing bills to reauthorize America’s FISA Section 702 spying powers advanced in the House of Representatives committees this week, setting up Congress for a battle over warrantless surveillance before the law lapses in the New Year.

At stake is the ability of US law enforcement to surveil the communications of American citizens and resident aliens without a warrant. Naturally, law enforcement is unwilling to give up these powers.

On Wednesday, the House Judiciary Committee approved the Protect Liberty and End Warrantless Surveillance Act (HR 6570) in a 35-2 vote. The bipartisan bill reauthorizes Section 702 of the Foreign Intelligence Surveillance Act (FISA) for three years with reforms including requiring all US intelligence agencies to obtain a warrant before conducting a US person query.

Section 702 is supposed to be used by the Feds to scan electronic communications of foreigners who are outside of the US to prevent terrorist attacks or other serious threats to national security. But if these foreigners communicate with or about people inside the US, then those emails, phone calls and texts can also be intercepted. 

Plus, it’s been blatantly abused by the FBI to spy on American protesters and an unnamed US senator, among other elected officials.

Section 702 will expire at the end of the year unless it’s renewed by US lawmakers. 

A day after the Judiciary Committee advanced its proposal, on Thursday the House Intelligence Committee unanimously passed the FISA Reform and Reauthorization Act of 2023 (HR 6611). 

This proposal also renews Section 702 — but notably without a strict warrant requirement, similar to another bill to reauthorize Section 702 in the US Senate. 

Instead, it seeks to end the FBI’s abuse of the controversial snooping tool by limiting its powers to conduct Section 702 queries on people in the US. Specifically, it prohibits the FBI from conducting “evidence of a crime only” queries of information, and greatly reduces the number of agents authorized to approve legal queries.

It also requires the FBI to notify “appropriate congressional leadership” anytime it conducts some of these queries, including those that involve US elected officials and political candidates.

US Representative Mike Turner (R-OH), who chairs the House Intel Committee, blasted the rival Judiciary Committee bill in his opening remarks. 

“Our bill is targeted to FBI abuses and I would have thought their bill would have also,” Turner said. “However, their bill spends more time expanding the constitutional rights of foreigners who travel in and out of the US, it creates civil liability for telecommunications companies that work with our intelligence community voluntarily, and curiously it provides immunity from prosecution, for some horrific crimes if they are discovered under 702 foreign intelligence collection.” 

These crimes, according to Turner, include “child pornography, human trafficking, murder and even money laundering.”

Both bills are expected to be voted on by the full House of Representatives as early as next week.

Guess which bill privacy advocates like best?

While we’d assume that the FBI prefers the House Intelligence Committee’s plan to reform Section 702 of the two options approaching a House floor vote, civil liberties, and digital privacy advocates aren’t fans.

Greg Nojeim, director of the Center for Democracy and Technology’s (CDT) Security and Surveillance Project, called HR 6611 a “Trojan Horse” and warned it would actually expand surveillance powers.

“This Trojan Horse would take FISA 702 orders beyond the realm of communication services (like email and messaging providers) and pull in anyone who could access equipment on which communications might be sent or stored,” Nojeim said on Friday.

“This could include data centers that merely rent out computer space, hotels and Airbnb owners, and even the local library or coffee shop. Including this provision would seriously impact American businesses far outside the communications and tech sector.”

Two days before, CDT applauded the House Judiciary Committee vote to advance HR 6570.

The ACLU also supports the Judiciary Committee’s proposal.

“With so much of our lives taking place online, it’s more important than ever that we have the freedom to communicate without fear of government surveillance,” said Kia Hamadanchy, senior policy counsel at ACLU, in a statement.

“This bipartisan bill is Congress’s best chance to ensure that Americans’ Fourth Amendment rights against unlawful search and seizures are actually protected and to finally hold the government accountable for its constant abuse of Section 702,” Hamadanchy continued.

And for those keeping a running tally: There’s also the much broader Government Surveillance Reform Act that seeks to reform Section 702 introduced in both the House and the Senate last month, although that proposal — which also includes a warrant requirement for US persons queries — is still awaiting committee votes in both chambers. ®