Senate approves extension of FISA surveillance just after deadline

The Senate early Saturday passed a two-year reauthorization of the Foreign Intelligence Surveillance Act’s (FISA) warrantless surveillance program after hours of intense and sometimes acrimonious debate on the Senate floor, narrowly avoiding a key national intelligence gathering capability going dark.

Senators voted 60-34 to send the bill to President Biden’s desk shortly after the midnight deadline for a lapse in expanded surveillance powers.

The legislation extends for another two years the government's ability to spy on foreigners located abroad, a process that also sweeps up communications of Americans they are in contact with.

The bill, the Reforming Intelligence and Securing America Act, enacts numerous reforms to FISA Section 702, even as it falls short of expectations from privacy hawks. 

“This is not a clean reauthorization of the existing bill. This is a reform bill which corrects many of the problems that we've experienced with Section 702,” Sen. John Cornyn (R-Texas), a member of the Senate Intelligence Committee, noted on the floor Friday.

The bill targets what privacy hawks see as FBI abuses of the 702 database by drastically culling who can approve a query, winnowing that figure from around 10,000 down to just 550. It also enacts an after-the-fact audit of any queries involving a U.S. person and enhances the civil and criminal penalties for anyone found to be misusing the tool.

And it codifies some FBI reforms targeted at curbing abuse, with the number of Americans searched in the 702 database having dropped considerably since the agency changed its search portal from automatically opting agents into querying 702 data.

“If enacted, the reforms included in this bill would be the most comprehensive set of reforms ever enacted,” Senate Intelligence Chair Mark Warner (D-Va.) said.

But some were skeptical that the measures would be sufficient.

The debate over the bill laid bare the deep divisions within both parties over a 15-year-old program that proponents hail as vital to national security and critics argue is a serious infringement on Americans’ right to privacy.

FISA’s surveillance program appeared to be headed for a temporary lapse until Senate Majority Leader Chuck Schumer (D-N.Y.) announced a breakthrough on the Senate floor at after 9 p.m. Friday.

“All day long, we persisted and persisted and persisted in hopes of reaching a breakthrough, and I am glad we got it done,” Schumer announced on the floor with relief in his voice.

“Allowing FISA to expire would have been dangerous. It’s an important part of our national security toolkit and helps law enforcement stop terrorist attacks, drug trafficking and violent extremism,” he said.

Schumer faced stiff opposition from within his own caucus, including from Sen. Ron Wyden (D-Ore.), a senior member of the Senate Intelligence Committee, who vowed to “do everything in my power to stop it from passing the Senate.”

Wyden and other critics argued that law enforcement agencies have abused the expanded surveillance power authorized by FISA’s Section 702.

“Searches have gone after American protesters, political campaign donors, even people who simply reported crimes to the FBI. The abuses have been extensive and well documented,” Wyden argued to colleagues.

He offered an amendment to strike out language added in the House that will expand the types of businesses compelled to comply with government surveillance requests.

Privacy hawks say the House language is poorly drafted and will conscript a wide range of businesses into spying.

But Wyden’s effort to strike it failed by a vote of 34 to 58.

Schumer also faced a threat from Senate Democratic Whip Dick Durbin (Ill.) who teamed up with Sen. Kevin Cramer (R-N.D.) on an amendment that would have required the government to get a warrant before reviewing any communications incidentally collected from Americans.

The proposed change was a top priority for privacy hawks, but one that the intelligence community said would gut the tool and stop them from acting on information in real time. It failed by a vote of 42 to 50.

The House-passed bill had strong support from members of the Senate Republican leadership team, including Senate GOP Leader Mitch McConnell (Ky.) and Cornyn.

McConnell argued on the Senate floor that the House needed to expand the types of electronic communications covered by the law because when it was first written, “the Internet was in the dark ages.”

Cornyn, a member of McConnell’s leadership team, hailed FISA’s expanded surveillance authority “the most important law that most Americans have never heard of” and “an essential tool for our intelligence community to protect the American people against a whole array of threats.”

GOP leaders clashed with conservatives within their conference, such as Sens. Rand Paul (R-Ky.) and Mike Lee (R-Utah), who tried to amend the bill and threatened to stretch the debate past Friday’s deadline if they didn’t get a chance to vote on changes.

Paul argued that the FISA program has undermined Americans’ right to due process, while Lee said the House-passed bill had “more problems than a math book.”

“Egregious Fourth Amendment violations against U.S. citizens will increase dramatically if this bill is passed into law,” Lee warned.

Paul offered an amendment to bar intelligence and law enforcement agencies from buying Americans’ data from third-party vendors, and a second one to impose strict limitations on surveilling Americans under the authority of the Foreign Intelligence Surveillance Court.

Both proposals failed, by votes of 31 to 61 and 11 to 82, respectively.

Lee offered an amendment to require the Foreign Intelligence Surveillance Court to appoint an outside lawyer to argue for the rights of a U.S. person the government wants to surveil secretly. It would have also required government employees appearing before the FISA court to disclose factual evidence that might call into question the accuracy of their statements.

It also failed even though it had previously passed the Senate with 77 votes in 2020.

The broader legislation, which passed the House 273 to 147 a week ago, includes provisions that expands use of Section 702, including a House passed amendment that would allow use of the tool to vet anyone coming into the country as a travel or migrant.

It was something the sponsor of the provision, Rep. Mike Waltz (R-Fla.) said would allow the government to “look into your background and make sure you’re not a terrorist.”

And the bill ventured into another section of FISA that lays out the framework for conducting domestic surveillance – provisions all added to address the 2016 spying on Trump campaign aide Carter Page. 

Unlike Section 702, domestic spying does require a warrant, and under the legislation, law enforcement would not be able to use political opposition research or media reports in an application for a warrant.

That targets two issues underlying the warrant to spy on Page, though a review later concluded that the FBI failed to include evidence that cut against its premise for seeking to surveil him. 

Another controversial provision of the bill includes provisions that would notify some members of Congress about searches involving lawmakers — something critics described as protections “for me but not for thee.”

The bill was approved by the House after a band of 19 GOP members tanked a procedural vote to advance debate on the legislation – a move that did not score them any of their policy demands.

The House conservative rebels, however, persuaded Speaker Mike Johnson (R-La.) to extend FISA 702 for only two years instead of the original five years first laid out in the bill.