Intelligence community largely won House FISA fight. Now comes the Senate

A bill to reauthorize the nation’s warrantless spy powers is headed to the Senate in what is largely viewed as a victory for the intelligence community, as the House declined to require authorities to first get a warrant and added several other provisions opposed by privacy hawks.

In a nail-biter of a Friday vote, the House declined to approve an amendment spearheaded by the House Judiciary Committee that would require law enforcement to get a warrant before looking at Americans’ data collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA).

At the same time, they approved a suite of amendments from an earlier House Intelligence bill dealing with Section 702 of FISA, including allowing its use for anyone entering the country as well as another provision requiring a greater number of electronic service providers to aid the government in surveilling foreigners.

“This bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history,” Sen. Ron Wyden (D-Ore.), a member of the chamber’s Intelligence Committee who has pushed for reforms to Section 702, wrote on social platform X shortly after the passage of the House bill.

“I will do everything in my power to stop it from passing in the Senate.”

His ally on the issue Sen. Mike Lee (R-Utah) urged the body via a post on X to “Fix FISA 702. Or shut it down.”

Section 702 empowers the nation’s intelligence agencies to spy only on noncitizens living abroad. But in the course of those operations, the government frequently sweeps up communications from Americans in contact with the foreigners under surveillance. 

The bill includes a number of reforms, including drastically limiting the number of personnel who can sign off on any queries of the 702 database involving those in the U.S. and also requires an after-the-fact audit for all U.S. person searches.

Still, how to go about reauthorizing the bill led to a months-long feud between members of the House Intelligence and Judiciary committees. The battle reached its peak during the floor vote, when House Intelligence Committee Chair Mike Turner (R-Ohio) stepped off the floor rather than watch the votes in real time, while ranking member Jim Himes (D-Conn.) was spotted nervously adjusting his tie during the amendment votes.

Those wishing to enact serious reforms on FISA had pushed for a number of provisions, but their lobbying was loudest around the warrant requirement amendment that failed in a tie 212-212 vote.

While that vote was a squeaker, the body gave its backing to two other provisions that have left privacy hawks unnerved.

The House approved an amendment from the two Intelligence leaders that changes the definition of an electronic communications service provider.

A one-page explanation from the House Intelligence majority said the shift in definition closes a loophole created by the Foreign Intelligence Surveillance Court by exempting “a specific type of provider,” while a separate explanation from the minority said the effort is “designed to respond to a very specific (and classified) fact pattern.”

The heavily redacted court opinion leaves unclear the particulars that prompted the intelligence community to seek a legislative fix.

It’s a revamp of an earlier provision in the House Intelligence bill that sparked concern the language would open up businesses like restaurants and hotels to having to share data created by their patrons while using their internet.

The latest version of the amendment, now a part of the bill, specifically exempts many businesses that serve the public, like restaurants, hotels and libraries, as well as private homes. Still, it’s drawn the ire of privacy advocates.

“Everyone was so focused on the warrant requirement that frankly, people weren’t paying that much attention to this amendment,” said Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty & National Security Program, who has been a top critic of the House bill.

“The issue is that at pretty much any U.S. business, there are people who are communicating on their devices, and they might be communicating with foreigners overseas, and they might be communicating with foreign targets. And so the idea is that you could get at those foreign target’s communications, but by picking up international communications that are transmitted through the equipment located in all of these businesses,” she said.

“What you’re going to see in these establishments is just massive amounts of wholly domestic communications that we’re giving​ the NSA access to. And then the NSA is kind of on the honor system to not retain any of those.”

A senior Justice Department official on Monday stressed the provision “is really an effort both to respond to that opinion, and simply update the statute to keep up with the changes in communications technology.”

“The exceptions in the provision are designed to cover every concern that has been raised. It carves out any type of food service, any type of public accommodation, every type of dwelling — homes, apartment buildings — every type of community facility, from libraries to hospitals, to recreational facilities and day care centers,” the official said during an interview with The Hill.

“Claims that this is a broad expansion of the authority are just incorrect.”

Turner has pitched that portion of the bill as a narrow fix and one that is still designed to allow surveillance of those abroad. 

“Again, 702 is about collecting data and information on foreigners abroad. You have to be both. You have to be a foreigner and you have to be abroad. You can’t be a foreigner in the United States and you can’t be an American abroad — foreigners abroad,” he said on the House floor Friday, adding that the bill was to “correct a technical issue.”

“So, there have been people who’ve been saying on this amendment that this is about collecting at your local Starbucks, this is about collecting at your local McDonald’s — it is not. It’s about foreigners abroad.”

Beyond the provision dealing with electronic communications service providers, the bill also expands 702’s use into the immigration space, allowing it for vetting noncitizens as they enter the country, whether for tourism or even as they immigrate.

“Currently Section 702 has only been authorized to collect information to support some Department of Homeland Security efforts to screen and vet foreign persons applying for travel or immigration to the United States. This amendment will enhance the vetting of all foreigners who come here,” Rep. Mike Waltz (R-Fla.), the sponsor of the amendment and a House Intelligence Committee member, told colleagues during Friday’s debate.

“The American people expect us to use every tool we legally can. Every intelligence piece of equipment and every database we can to protect us against foreigners who would mean us harm. … If you want to come to the United States, fine, you need to do so legally; but you know what, we’re going to look into your background and make sure you’re not a terrorist. We’re going to make sure you’re not a Chinese national spy.”

It was a provision that previously earned condemnation from a fellow Intel colleague.

“I am increasingly concerned about the rhetoric from many parts of this Congress and from leading public figures and presidential candidates who want to ‘shut down the border’ and stop those seeking refuge in the United States from attempting to,” Rep. Joaquin Castro (D-Texas), said in December when the provision was rolled into an earlier House Intelligence bill.

“I fear codifying this provision without meaningful safeguards would give those who capitalize on fear and xenophobia an important tool to pursue their agenda. I do not believe this is the intention of the authors of the bill but we cannot trust those yielding the powers that we present to them in the future will not abuse those powers.”  

While privacy hawks in the Senate like Wyden have vowed to fight provisions of the bill they find concerning, House lawmakers who stalled its progress in the lower chamber boasted of using their sway to limit the bill’s reauthorization period.

“The one [good thing] is that just a day or so ago, this expansion of FISA would have lasted five years,” Rep. Matt Gaetz (R-Fla.), who led the group, said shortly after Friday’s vote. 

“But because we brought down the rule, and because we got some concessions, this is only a two-year massive expansion of FISA instead of a five-year massive expansion of FISA.” 

Mike Lillis and Mychael Schnell contributed.