House Judiciary advances warrantless wiretapping reform bill

The House Judiciary Committee on Wednesday voted to advance a compromise proposal to reform the National Security Agency’s warrantless surveillance program, the first of many hurdles the delicately crafted legislation will face before the program expires at the end of the year.

The so-called USA Liberty Act passed on a 27-8 vote — but a fierce dispute over privacy protections in the bill has made its future on the House floor far from certain.

An amendment from Reps. Ted Poe (R-Texas) and Zoe Lofgren (D-Calif.), which would have stiffened privacy requirements, failed 12-21 on Wednesday, after committee leaders warned it would sink the underlying bill.

And the House Freedom Caucus has already positioned itself to oppose the bill on the floor for not going far enough to curtail what members say is an unacceptable breach of Fourth Amendment protections.

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“I think there’s going to have to be a lot more work that’s done to make sure that we don’t have the illegal search and seizure of Americans that happens on a regular basis,” Freedom Caucus Chairman Mark Meadows (R-N.C.) told The Hill on Tuesday.

“If it does get out of committee, I don’t think there’s enough support on the House floor for it to pass.”

Complicating the path further, the Intelligence Committee — which shares jurisdiction over the issue — is also not entirely on board with the proposal, worrying that it goes too far to reform a program some members don’t think needs to be fixed. Staff from the two committees have been in talks for months and rumors have swirled that the chair of that panel, Rep. Devin Nunes (R-Calif.), is preparing to drop a separate bill.

At issue is a law, known as Section 702, that allows the government to collect the emails and phone calls of foreign spies, terrorists and other foreign targets overseas — even when those foreigners communicate with Americans, whose details are said to have been collected “incidentally.”

The current law allows federal investigators to search collected data belonging to American citizens, an authority critics say circumvents Fourth Amendment protections against unlawful search and seizure.

The Liberty Act would require criminal investigators to obtain a court order before viewing the content of any Americans’ communications collected under the NSA program — but would not require a warrant to search the database in the first place.

The Trump administration has stumped for a clean reauthorization of the law for months, arguing that any changes would impair a critical tool the intelligence community needs to identify and disrupt terror plots.

Supporters of the program also argue that current case law supports the program’s constitutionality. FBI Director Christopher Wray in October pointed to a decision in the Ninth Circuit that said that the collection of Americans’ communications under the current law doesn’t run afoul of the Fourth Amendment.

But the court declined to weigh in on the broader constitutionality of the program — including whether subsequent searches of the database would violate the search-and-seizure law.

And the chair of the Judiciary panel, Rep. Bob Goodlatte (R-Va.), who authored the Liberty Act, has warned that a clean reauthorization doesn’t have the votes to pass the House. The current bill is the result of months of careful compromise by committee lawyers — which privacy advocates say still doesn’t go nearly far enough to close the so-called “backdoor search loophole.”

The Poe-Lofgren amendment would have required investigators to seek a warrant before even searching the database for U.S. persons — a change that House leadership has already signaled is a nonstarter.

“We have been assured in explicit terms that if we adopt this amendment today, leadership will not permit this bill to proceed to the House floor,” said ranking member John Conyers (D-Mich.), who crafted the Liberty Act with Goodlatte.

Rep. Jerrold Nadler (D-N.Y.), who opposed the amendment reluctantly, warned that a failure to pass the bill as written would likely result in House leadership jamming a clean, permanent reauthorization of the program into must-pass spending legislation at the end of the year.

“What I am really afraid of is if we don’t have this bill to extend Section 702 with appropriate limitations, we will find out at the last minute that there’s a provision in the CR that will extend Section 702 forever,” he said Wednesday, referring to a continuing resolution.

“And at that point it will be unstoppable.”

The threat from leadership has done little to deter the bipartisan group that supports making the change.

The Poe-Lofgran amendment “protects our rights under the #4thAmendment,” Rep. Justin Amash (R-Mich.) tweeted Wednesday afternoon, calling the Liberty Act “unconstitutional.”

“GOP & Dem leaders have teamed up to stop them. Tell your rep to vote no on the #LibertyAct if it doesn’t include the Poe-Lofgren amdt.”

Supporters of the program, which expires in December, are worried that the combined opposition of privacy-minded lawmakers could be enough to sink the bill — and by extension the program itself — on the House floor.

“There is a genuine concern amongst those of us that support the program that [a renewal] may not pass the House,” Rep. Tom Rooney (R-Fla.), who sits on the intel panel, told The Hill in an interview on Tuesday.

“I don’t know what you do in that case.”

Speaking to The Hill on Wednesday, Goodlatte downplayed concerns that the Freedom Caucus and other privacy-minded lawmakers would be able to pull down enough votes to sink a renewal.

He also dismissed the notion that Intelligence Committee members would be able to force additional changes to his legislation.

“We’ve got a bill out, we’re ready to go, we’d love to have them support it,” he said.

In the Senate, the future of the program is equally uncertain. The Intelligence Committee passed a modest reform proposal over two weeks ago, but a similar bloc of libertarian-minded Republicans and Democrats have put its future in question.

A competing proposal led by Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.), which would tighten privacy restrictions, has drawn a handful of supporters. And on the Intel panel, Sen. Dianne Feinstein (D-Calif.) — a powerful player who has been traditionally hawkish on surveillance issues — has pushed for a backdoor fix.

Goodlatte said Wednesday he has been in discussions with leadership about the timing of a floor vote for the Liberty Act, but said no decisions have been made yet.

“I would suspect soon, since we have a deadline at the end of the year,” Goodlatte told The Hill.