A group of House Republicans stalled the reauthorization of the Foreign Intelligence Surveillance Act yesterday, April 10. Nineteen GOP members joined Democrats in shutting down the passage of FISA Section 702 that enables US intelligence agencies to spy on foreigners abroad. The sticking point for the conservatives appears to be that it is too easy for Americans to be spied upon.
As detailed by the Office of the Director of National Security, Section 702 specifically “permits the government to conduct targeted surveillance of foreign persons located outside the United States, with the compelled assistance of electronic communication service providers, to acquire foreign intelligence information.” The reality, however, is that American citizens are often caught up in the intelligence scoop, as well.
FISA Bug or Feature?
Former President Donald Trump was embroiled in just such a scandal after FISA was inappropriately used to surveil Carter Page, an aide to his 2016 campaign. Renewal applications of FISA warrants against Page were found to be “inaccurate, incomplete, or unsupported by appropriate documentation,” by the DOJ’s Inspector General Michael Horowitz.
That the surveillance tools can be inappropriately used against
American citizens is a fact admitted by the very agencies that use them.
So why have attempts at reform been so far unsuccessful?
The procedural vote that would have allowed debate and then a floor vote on the reauthorization failed 193 to 228. But it was not FISA itself that was the contention, but the amendments that were not included. Representative Andy Barr (R-KY) had some choice words for those who voted against party lines:
“Here’s what frustrates me – is that the same members who are taking down this rule are vociferously advocating for reforming FISA. There are 56 major reforms of FISA 702 that are embedded in the base bill. I understand they don’t think those 56 reforms go far enough, but by taking down the rule and by making it impossible to pass this reform base bill, they’re gonna get nothing.”
Backdoors to Surveillance
One of the excluded amendments would have forced intelligence agencies to seek a warrant before buying digital information on American citizens from third-party data brokers. The issue here appears that without the need for a warrant, there is a risk that the US government could end up creating a system similar to the Indian Snake Bounty debacle, where the British told Indians they would pay a bounty for every dead cobra. Locals then began breeding cobras to cash in.
Another amendment that failed to make the cut would have required the federal government to get a second warrant before querying data on any Americans who might otherwise get caught up in the sweep because of contact with a FISA target.
Republican Rep. Matt Gaetz of Florida – who voted against the measure – described his rationale, saying:
“FISA authorities have been used to violate the law more than 278,000 times by the national security state, and there has yet to be any consequences for this illegal activity by our government.
“The reauthorization lacks essential reforms to protect Americans’ Fourth Amendment rights, such as requiring the FBI to obtain a warrant before searching Americans’ data and a prohibition on the government purchasing Americans’ data from third-party data brokers.”
The full slate of Democrats also voted against the procedural vote – not because they do not support the reauthorization, but because it has become standard practice to vote against the majority when procedural issues are on the table.
Blame Trump?
As the subject of the FBI’s Crossfire Hurricane investigation into alleged Russian Collusion, Donald Trump has reason to be wary of FISA. After all, FISA warrants were illegally obtained to continue the operation. Prior to the vote, he posted on TruthSocial: “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!”
While numerous media outlets suggested that the rebellious Republicans were voting directly in accordance with Trump’s request (indeed, Gaetz posted “on it” in response), the reality is that FISA has long been viewed as an overreach at best and an attack on privacy at worst by many on the right. In July 2023, Gaetz introduced legislation that would put an end to what he calls “creepy” surveillance.
By killing the procedural vote, the timetable for reauthorizing Section 702 just got a lot tighter. And perhaps that was the point all along.
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