The US House of Representatives has passed a six-year extension to the controversial Section 702 spying program, rejecting an amendment that would have required the authorities to get a warrant before searching for information on US citizens.
The 256-164 vote effectively retains the status quo and undermines a multi-year effort to bring accountability to a program that critics argue breaks the Constitution. A bipartisan substitute amendment put forward by House reps Justin Amash (R-MI) and Zoe Lofgren (D-CA) and supported by both ends of the political spectrum was defeated 233-183. You can see a comparison of the two bills – the one that was passed, and the rejected Amash-Lofgren set of safeguards – here [PDF].
The already tense atmosphere in Washington DC over the issue was heightened when President Trump tweeted his apparent support of critics of the program just moments after the Amash-Lofgren amendment was discussed on Fox News.
"House votes on controversial FISA ACT today," Donald tweeted. "This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?"
That statement went directly against the White House's own position and caused some confusion in Congress until, 90 minutes later and presumably after aides rushed to explain the spying program to the president, Trump tweeted again:
With that being said, I have personally directed the fix to the unmasking process since taking office and today's vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!
Apparently, House Speaker Paul Ryan had a word with the president in between those two tweets.
The issue, as many in Congress and civil liberties groups have repeatedly pointed out, is that although Section 702 of the FISA Amendments Act sets out a foreign surveillance program, Uncle Sam's snoops have developed a series of highly questionable legal positions over the years that allow them to collect, store and potentially search the communications of millions of US citizens. The new bill, voted on today, effectively seeks to write those interpretations into law.
In effect, the "foreign" surveillance program – after all, FISA stands for Foreign Intelligence Surveillance Act – became a domestic spying program. It gave FBI a vast database of information on US citizens that it could search for a wide range of crimes without requiring a warrant to do so – something that almost certainly breaks the Fourth Amendment on unreasonable search.
There was no shortage of impassioned arguments against the bill that passed.
"Section 702 was written to go after terrorists, but it is being used to go after Americans," warned House rep Ted Poe (R-TX). "We think that is unconstitutional, hugely problematic, and we're here to defend the rights of the American people," added Amash.
A new warrant requirement written in the bill was sold by Representative Adam Schiff (D-CA) as sufficient to "prevent the database from being used as a general tool to gather evidence," but was dismissed as a sop with little real impact. This requirement states that the FBI needs to seek a search warrant if agents are probing anything other than:
Death, kidnapping, serious bodily injury, offense against a minor, destruction of critical infrastructure, cybersecurity, transnational crime, and human trafficking.
Which, to us and others, looks like a list of stuff the Feds regularly investigate.
"The new warrant requirement in this bill is a fig leaf for reform and fails to address the vast majority of searches of 702 information," warned Representative Jerrold Nadler (D-NY), "and we know this because the FBI admitted as much to us." He's right – the FBI told lawmakers it would only rarely need to go to court to search the 702 database under this new bill.
Senator Ron Wyden – a persistent critic of the program – also slammed the new limited warrant requirement calling it "fake reform."
US domestic, er, foreign spying bill progresses through CongressREAD MORE
The program's renewal was also repeatedly tweeted about by Edward Snowden – who helped expose the extent to which the security services were using the law to carry out mass surveillance of Americans – and NSA whistleblower Thomas Drake also put out a statement warning that the bill "actually gives criminal suspects more Fourth Amendment protections than innocent people."
"National security does not trump our inalienable rights as a people, especially when the government want to 'collect it all to know it all' and bypass the rule of law for secret executive rules to keep us safe from ourselves using legislative acts to make it all legal," he wrote.
On the other side, House Speaker Paul Ryan (R-WI) argued that the bill "strikes the balance that we must have between honoring and protecting civil liberties and making sure we have the tools in this age of 21st century terrorism to protect our people."
The reauthorization of Section 702 of the Foreign Intelligence Surveillance (FISA) Amendments Act still has to pass the Senate – which it will likely do but not without significant and defiant opposition from a significant number of senators before landing on President Trump's desk. ®