Congressional privacy hawks scored a critical victory on Wednesday that deepens the uncertainty about the fate of expired federal surveillance powers.
Senators voted 77-19 — well over the 60-vote threshold — to adopt a bipartisan amendment bolstering legal protections for targets of federal surveillance. The move means that Congress’ attempt to reauthorize key sections of the Foreign Intelligence Surveillance Act will detour back to the House, where it could face more delays or tinkering at the hands of privacy advocates and Republicans.
It’s also unclear if President Donald Trump would sign the legislation, even though Attorney General William Barr helped negotiate it. Trump has railed against the Obama administration’s use of FISA to surveil supporters of his campaign in 2016, and has complained on Twitter about the bill’s House-backed version.
FISA is a Watergate-era law that serves as the foundation for national security probes and governs federal surveillance, both domestically and of Americans abroad. Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) offered the amendment that lawmakers adopted Wednesday.
“BREAKING: BIG win tonight for the protection of Americans’ privacy and civil liberties!” Leahy tweeted after the vote. “Tomorrow we turn to the underlying bill, and then on to House.”
Approval of the amendment marked a legislative coup for privacy advocates and civil libertarians, who have struggled lately to maintain the legislative gains they had achieved after former NSA contractor Edward Snowden leaked details about the government’s most secret spying programs.
Wednesday’s successful push also adds a new wrinkle to what has become a months-long saga to renew intelligence authorities that expired on March 15 after Congress left town in the face of the Covid-19 pandemic without reaching an agreement.
Once the bill returns to the House, it’s unclear if the change will mollify privacy advocates enough to allow for a quick approval. House Republicans, who have spent weeks demanding that the chamber return to normal business, could also push to reopen a broader debate over changes to FISA.
“My sense from my House counterparts was this is a carefully crafted compromise and that it could potentially unravel if it comes back with this amendment,” Virginia Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee, told POLITICO.
But Warner, who voted against the reform measure, noted that 75 House Democrats voted against the renewal bill the first time in March and that with the amendment, “maybe it could pick up more.”
Texas Sen. John Cornyn, the former GOP whip, said that “it could be the House will just take it up and pass it,” but declined to speculate on when that might be.
Lee, who had lobbied Trump to veto the House bill if it reached his desk, said in a statement that the reform measure “will help bring some much-needed oversight and accountability” to FISA.
“More work still needs to be done, but this is good reform in the right direction, and I look forward to final passage of this FISA reform legislation,” the Utah Republican added.
The Senate is expected to pass its version of the bill on Thursday, but first lawmakers will have to vote on an amendment by Sen. Rand Paul (R-Ky.), which is expected to fail. Paul, a close Trump ally, has also pushed the president to veto the legislation.
Paul has indicated that he would continue to urge a veto unless all three reform amendments were adopted.
Before notching their victory, privacy-minded lawmakers were dealt a setback Wednesday, when they came up one vote shy of approving an amendment that would have protected Americans’ internet browsing and search history from federal surveillance.
“As far as I can tell we lost because there were some people absent,” Sen. Ron Wyden (D-Ore.), who co-sponsored the measure with Sen. Steve Daines (R-Mont.), told POLITICO. “I intend to keep coming back to make sure that any administration can’t spy on [Americans] and violate the Constitution.”
The bill incorporates new privacy provisions into FISA and imposes new requirements on the FISA court system. It also permanently ends a deactivated NSA program that had allowed the country’s largest intelligence organization to obtain, with judicial approval, Americans’ phone records in terrorism probes.
Under an agreement struck in March, Senate Majority Leader Mitch McConnell can introduce up to three amendments of his own to undercut or weaken the others. However, he declined to do so Wednesday.