The Senate on Thursday overwhelmingly voted to reauthorize three national security surveillance authorities that have been expired since March.
The chamber voted 80-16 to extend the surveillance authorities under the Foreign Intelligence Surveillance Act.
The vote occurred after the Senate adopted a bipartisan amendment on Wednesday from Republican Sen. Mike Lee of Utah and Democratic Sen. Patrick Leahy of Vermont to provide additional legal protections in the FISA court for targets of surveillance warrants. The Senate’s amendment means the House will have to pass the new version of the legislation before it goes to the President’s desk.
The additional protections in the amendment would expand outside review of FISA surveillance cases. The USA Freedom Act allowed for the appointment of amicus curiae (outside, neutral advocates) at the court’s discretion. This amendment makes it a bit more mandatory, requiring the court to appoint one in any case involving "sensitive investigative matters." That covers a lot of ground, but the amendment was written with the targeting of US persons in mind.
More importantly, it grants the amicus the power to raise any issue at any time and gives them access to all pertinent court documents, including underlying warrant applications.
Unfortunately, this bill moved forward without stronger surveillance reforms, including an amendment written by Senators Ron Wyden and Steve Daines that would have added a warrant requirement for the collection of internet browsing history and search data. This fell one vote shy of passing -- something that any of the four missing senators that supported the amendment could have fixed by showing up and voting.
The Senate’s approved version reauthorizes authorities affected by 2015’s USA Freedom Act and parts of Section 215, like the infamous "roving wiretap" authority and the apparently never-used "lone wolf" provision that allows for the surveillance of people with no known ties to any terrorist group.
If it remains intact before passage, the bill would also formally end the NSA’s bulk phone data collection. The NSA voluntarily retired this after it was unable to avoid over-collection even while having to approach telcos directly with reasonable suspicion-supported requests for call records. Having gone from mostly useless to completely useless, the NSA decided this collection was no longer worth the compliance headache. For whatever reason, the FBI fought to keep this zombie program alive, claiming that the slim possibility of it being useful as some undetermined point in the future justified its continued existence.
We’ll have to see what survives the House’s second pass before it heads to Trump for a signature. That’s the version that’s had plenty of input from Bill Barr, who apparently wants as much surveillance power as possible even as the Commander-in-Chief complains about the abuse of these powers to target him and his.
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