FISA: When In Doubt, Always Bet On Fear

Patrick G. Eddington

One point I always make when talking about national security issues, and especially those involving surveillance powers, is this: when in doubt, always bet on fear.

This afternoon, the House of Representatives wrapped up an extremely tense and at times quite acrimonious debate on reauthorization of Title VII of the Foreign Intelligence Surveillance Act (FISA), and specifically the FISA Section 702 warrantless electronic mass surveillance program. The final vote on the bill was 273–147.

An amendment to require the FBI to get a warrant to access the stored communications of Americans collected under the 702 program failed in a nail‐​biter, 212–212. Opponents of the warrant requirement got key help from an unlikely source: former House Speaker Nancy Pelosi (D‑CA), who made an impassioned plea to reject the warrant requirement and support the underlying bill. Her position was rather ironic, given her prior support for exactly this kind of warrant requirement in 2014, 2015, and 2016. Fierce opposition from the Biden administration also helped sink the amendment.

Another amendment allowing Members of Congress to sit in during FISA court debates and requiring quarterly 702 query reports from the FBI passed easily, as did an amendment adding fentanyl trafficking to the approved uses of Section 702 collection—a flagrant and dangerous expansion of FISA authority that will no doubt make the failed “War on Drugs” even worse.

Even more ominously, an amendment to change the definition of “electronic communications provider” also passed, meaning that a vastly greater number of businesses’ communications may also be subject to Section 702 collection and storage.

One change made to the underlying bill during negotiations was reducing the reauthorization time of Title VII from five years to two years. That’s a tactical victory for reformers that may have larger implications down the road, as the clear expansion of FISA surveillance this bill represents virtually guarantees additional abuses of the constitutional rights of Americans.

Given the Biden administration’s stated support for the bill absent the warrant requirement, it seems certain that Biden’s national security team will push the Senate to simply move the House bill as passed. Whether that will happen is something we’ll get a better sense of next week.