Cybersecurity Policy Report, Senate Poised to Work Through Weekend on Surveillance Bill, (Apr 19, 2024)
Senate Majority Leader Chuck Schumer today said the Senate might work through the weekend to break a deadlock over the reauthorization of a foreign intelligence surveillance law that was due to expire at midnight.
The Senate is considering a bill approved by the House, the Reforming Intelligence and Securing America Act (RISAA) (HR 7888), which would reauthorize section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 empowers U.S. intelligence agencies to monitor the communications of foreigners who are overseas and considered national security threats. The provision expires at midnight tonight, although the surveillance activities authorized by the law will continue through April 2025 (CPR, April 17).
Senate leaders had been hoping to adopt the House bill before tonight’s deadline but several senators have offered amendments that they say are needed to protect the privacy and civil liberties of Americans.
“We are still trying to see if there’s a path to getting this bill done quickly, but disagreements remain on how to proceed. The work is not done, so we are going to keep at it,” Sen. Schumer said today on the Senate floor.
“We want to get FISA done as soon as we can, because it is very important for our national security. But as everyone knows, any one member can halt progress in this chamber, so both sides need to fully cooperate if we want to get FISA done,” he said.
“So for the information of my colleagues, members should plan to be here over the weekend if necessary,” he added.
The Senate yesterday voted 67-32 to invoke cloture on a motion to proceed to consideration of RISAA. But amendments offered yesterday and today have slowed progress.
Sen. Dick Durbin (D., Ill.) offered an amendment based on his Security and Freedom Enhancement (SAFE) Act (S 3691), which would require the Federal Bureau of Investigation to obtain a probable-cause warrant before viewing the contents of Americans’ communications swept up under section 702 (CPR, March 14).
While section 702 is designed to allow the surveillance of foreign intelligence targets, Americans’ communications are collected when they’re in contact with those targets.
The warrant requirement in Sen. Durbin’s bill is narrower than other proposals that would require the FBI to obtain a probable-cause warrant before searching section 702 data using search terms associated with an American. Instead, Sen. Durbin proposes allowing those searches to take place and requiring the FBI to obtain a warrant only before accessing the content of communications.
“Requiring the government to obtain court approval before accessing the content of Americans’ private communications that get swept up in Section 702 surveillance would protect Americans while preserving Section 702 as a foreign intelligence collection tool,” according to a news release from Sen. Durbin’s office.
Sen. Durbin’s amendment is co-sponsored by Sens. Kevin Cramer (R,. N.D.), Mazie Hirono (D., Hawaii), and Mike Lee (R., Utah).
Another amendment to RISAA offered by Sens. Ron Wyden (D., Ore.) and Cynthia Lummis (R., Wyo.) would strip a provision added to RISAA by the House that would designate additional entities as “electronic communication service providers” subject to government requests for communications intercepts under FISA (CPR, April 12).
“Under this provision, there would be practically no limits to who can be forced into spying for the government. Any company that installs, maintains, or repairs Wi-Fi or other communications systems in any American business, home, or church can be dragged into this,” Sen. Wyden said on the Senate floor.
“Under this provision, landlords, the companies that maintain the cables and Wi-Fi, and any number of companies whose employees have access to any of that equipment can all be forced to cooperate with the government’s surveillance,” he added.
Attorney General Merrick Garland sought to reassure senators that the language redefining electronic communication service provider was merely a “technical” change in FISA to respond to a particular class of service providers that the Foreign Intelligence Surveillance Court had ruled were exempt from FISA.
The new definition is “narrowly tailored and is in response to the Foreign Intelligence Surveillance Court's identification of a need for a legislative fix,” Mr. Garland told Senate leaders in a letter sent yesterday.
The Wyden-Lummis amendment is co-sponsored by Sens. Lee, Hirono, Ed Markey (D., Mass.), Roger Marshall (R., Kan.), Cory Booker (D., N.J.), and Josh Hawley (R., Mo.), according to a news release from Sen. Wyden’s office.
At CPR’s late-afternoon news deadline, senators were still negotiating an agreement to debate the Durbin and Wyden-Lummis amendments and a limited number of additional amendments.
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