The House FISA Compromise Bill Passes – Has AG Barr’s Endorsement

The House of Representatives today passed, on a 278-136 vote, a bipartisan bill that would reauthorize certain intelligence-related authorities that are set to expire on March 15 as well as make substantive changes to the Foreign Intelligence Surveillance Act (FISA) and a number of related laws. The bill builds off an earlier bill introduced on Feb. 24. The compromise bill, H.R. 6172, was worked out between House leadership as well as the House Judiciary and House Intelligence Committees. Congress is on recess next week and the Senate is expected to act on the bill this week. But the bill could run into problems there. Some Senate Republicans are not happy with the bill.

Sens. Mike Lee and Rand Paul have tweeted their displeasure. If the Senate cannot pass H.R. 6172 before the existing authorities expire on March 15, it is possible the Senate may act on another short-term extension. Meanwhile, Attorney General William Barr has expressed his support for the compromise bill.

The New York Times offers good context for the compromise bill. Some key quotes from the article are as follows:

  • The bill would extend the three expiring tools—like the F.B.I.’s ability to get FISA court orders for business records deemed relevant to a national security investigation—while ending legal authority for an expensive, dysfunctional and defunct N.S.A. system that had allowed counterterrorism analysts to swiftly access logs of Americans’ phone calls.
  • The bill would also expand when FISA judges—who normally hear only from the government when deciding whether to grant a surveillance application—should appoint an outsider to critique the government’s position. Currently, judges are supposed to do so only when addressing a novel and significant question of interpreting surveillance law.
  • Under the bill, the FISA court would also be directed to consider appointing a government critic when an application “presents exceptional concerns” about protecting the First Amendment rights of a surveillance subject—a formulation that could apply to investigations touching on political campaigns or religious activity.
  • The bill would not make a change that many civil liberties and privacy groups have advocated: letting defense lawyers read FISA applications if their clients are prosecuted on the basis of evidence derived from such wiretaps or searches, as defense lawyers are permitted to do in ordinary criminal cases.
  • But it would also expand criminal penalties issues surrounding misuse of FISA, raising from five to eight years the prison sentence for engaging in electronic surveillance without following procedures.
  • The bill would also outlaw the disclosure of the existence of an application or classified information contained in it, as well as knowingly making a false declaration before the FISA court. The move would be more symbolic than substantive because those were already illegal.
  • And it would make clear that the government cannot use a business records order to collect information—like cellphone location data—that in a criminal investigation requires a search warrant, which has a higher legal standard.

 

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