FISA Surveillance and Possible Reforms Are Back on the Senate's Agenda

Next week the Senate is poised to resurrect some federal surveillance powers that expired in the midst of the coronavirus pandemic. A handful of senators are hoping to force through reforms to better protect Americans’ privacy.

In March the USA Freedom Act expired, somewhat unceremoniously, as lawmakers were unable to reach a consensus on a renewal as the pandemic began to pick up steam and overtake all public policy priorities.

The USA Freedom Act authorized (but restricted) the collection of Americans’ phone and internet record metadata that the National Security Agency (NSA) had been gathering without citizen knowledge before Edward Snowden exposed it. A compromise bill, the USA Freedom Act added some buffers to how the NSA would collect the data and required more reporting of the activities of the Foreign Intelligence Surveillance Act (FISA) courts, so citizens would have a better sense of the extent that this “foreign” surveillance was in fact targeting Americans.

The NSA has since abandoned the metadata collection, which had proven ineffective at tracking down terror threats even as it violated Americans’ Fourth Amendment rights. But the Act has other surveillance components (authorizing roving wiretaps, tracking so-called “lone wolf” terrorists). And even though the NSA has stopped using its metadata collection powers, President Donald Trump’s administration has asked for the entire USA Freedom Act to be renewed, intact, permanently.

Fortunately, that’s not going to happen: The House passed a renewal bill in March that officially killed off the records program once and for all. Now surveillance critics in the Senate, such as Rand Paul (R–Ky.), Mike Lee (R–Utah) and Ron Wyden (D–Ore.), are pushing for further reforms to the way the government targets American citizens for secret surveillance. Their demands for amendments to the House’s bill stopped the bill from moving forward in March. Now the Senate plans to consider the House’s bill along with these proposed amendments.

The USA Freedom Act played no role in the FBI’s use of the FISA court to secretly wiretap former Trump aide Carter Page. But the discovery that the FBI played fast and loose with the truth when requesting these warrants from the FISA court, and the subsequent evidence that the FBI regularly does a terrible job of documenting its evidence when targeting any Americans for FISA surveillance, have created an opening for civil libertarians to call for stronger privacy protections.

The Hill reports:

Sen. Rand Paul (R–Ky.) will get a vote on his amendment that would bar the FISA court from issuing warrants for American citizens and instead require law enforcement agencies such as the FBI to obtain a warrant from a normal court established under Article III of the Constitution.

Sens. Mike Lee (R–Utah) and Patrick Leahy (D–Vt.) will get a vote on their amendment to require the appointment of amicus curiae, or outside advisers, with expertise in privacy and civil liberties to advise the FISA court on surveillance warrants.

Sens. Steve Daines (R–Mont.) and Ron Wyden (D–Ore.) will get a vote on an amendment to bar law enforcement from obtaining internet browsing and search history without a warrant.

These are all great amendments. Unfortunately, they will probably fail. Far too many lawmakers on both sides of the aisle are against serious surveillance reforms.

Senators like Paul are banking on Trump’s outrage over what happened to Page to push these additional reforms through. Establishment Republicans and Democrats are banking on Trump only caring about how surveillance affects him and the people around him.

We’ll soon find out which side is correct. My money’s on the establishment, but I’ll be happy to be wrong this time.