Congress Pulls Bill That Would Massively Expand Surveillance After 'Dramatic Showdown'

The House of Representatives will not vote on two proposed surveillance bills, one of which would massively expand one of the government’s most powerful mass surveillance tools, after the Rules Committee pulled both bills. 

The bills, one by the Intelligence Committee and the other by the Judiciary Committee, would reform and reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), through which the U.S. government can compel domestic communications companies to assist in surveilling non-U.S. individuals who are outside the country by providing access to their communications streams. The bills were originally set to be voted on simultaneously on Tuesday afternoon in a “Queen of the Hill” vote—both bills would be put on the floor, and whichever of the two received the most votes would take effect.

There is a history of documented abuses of Section 702 by U.S. agencies, which use the law to spy on domestic citizens communicating with someone abroad; members of Congress have since agreed that reforms were needed. However, a provision in the Intelligence Committee’s bill expands the definition of “electronic communication service provider” to include any “equipment that is being or may be used to transmit or store such communications.” Privacy experts at the Brennan Center for Justice and other rights groups warned that this provision could be made to include any ordinary Wi-Fi router at a cafe or library, vastly expanding the government’s possible surveillance network. 

The Rules Committee postponed the vote after a heated House GOP conference meeting. 

“It was a pretty dramatic showdown,” said Elizabeth Goitein, the co-director of the Liberty and National Security Program at the Brennan Center for Justice, in a phone call with Motherboard. “There's so many concerns now with the House Intelligence bill, that it just seemed impossible to go forward with the Queen of the Hill approach. There were some very serious problems that I think even the House Intelligence Committee drafters of that bill realized, in terms of its massive expansion of surveillance in the United States.”

The bill has received widespread criticism from organizations like the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF). Over 50 organizations signed a letter demanding that this provision not be authorized. The Judiciary Committee’s bill has, in contrast, received some overt support from digital privacy experts. 

Section 702’s authorization is currently set to expire on December 31. The House is expected to vote on the National Defense Authorization Act on Thursday, which would temporarily extend FISA Section 702’s authorization to April 19. 

“What purports to be a four-month reauthorization in practice would be a 16-month reauthorization,” Goitein said. “The government gets these one-year authorizations from the FISA court to conduct surveillance, and the law is pretty clear that those authorizations stay in place, even if Section 702 itself were to expire.” 

“The [NDAA] takes the government to April of 2024, which means that before then, the government would be going back to the FISA court to get another one-year authorization,” she continued. “The government would probably get that in early April. So, in practice, this four-month reauthorization is a 16-month authorization—unless Congress were to expressly say, ‘you can’t use this time to go back and get another one-year reauthorization,’ which is an option.” 

Goitein said the Senate would decide Tuesday whether to include a Section 702 reauthorization in the NDAA text, before the full vote on Thursday.