The House voted 300 to 118 to extend the law for five years. The Senate likely will not take up its version of the bill until after the Nov. 6 election.
The Obama administration is pressing the case that renewal is crucial to preserving the government’s capabilities to collect intelligence on adversaries overseas. At the same time it is seeking to refute assertions made by civil libertarians and some lawmakers — most notably Sen. Ron Wyden (D-Ore.) — that the law enables the intelligence community to spy on Americans without probable cause.
“The Congress never intended to authorize warrantless searches for the communications of specific Americans,” said Wyden, who in June announced his intention to block the bill unless it includes stronger privacy protections.
His case, he said in an interview Wednesday, is strengthened by the government’s disclosure in July that the constitutional privacy rights of Americans were violated on “at least one occasion” by intelligence gathering under the statute.
The 2008 law revised the Foreign Intelligence Surveillance Act, adopted in 1978 after congressional hearings revealed abuses in which intelligence agencies spied on American antiwar protesters, civil rights leaders and others without warrants. The revision also followed disclosures that the government, after the Sept. 11, 2001, terrorist attacks, launched a program in which the National Security Agency collected Americans’ e-mails and phone calls related to a certain terrorist organization without a warrant.
The law was revised in part to ensure that the program operated under court supervision. It also enabled the government to collect from companies in the U.S. the communications of foreigners overseas, even if they are communicating with someone in the United States, as long as the target is a foreigner overseas.
In such cases where Americans’ calls or e-mails are “incidentally” collected, their data is subject to rules limiting its use and masking their identity, officials said. If a U.S. citizen or permanent resident becomes the target of collection, a warrant must be obtained.
“The FISA Amendments Act is not a tool for spying on Americans,” Robert Litt, general counsel of the Office of the Director of National Intelligence, said in a conference call on Tuesday. He said the constitutional violation that Wyden flagged was unintentional and that officials had found a “solution” to avoid a recurrence of the problem.
A key Wyden concern is that Americans’ communications that are collected under the law can be searched without probable cause. Wyden wants to require a warrant for such searches.
It would be “extraordinary,” Litt said, to require “information that’s lawfully been collected [to have] an additional restriction imposed upon it before that can be used.”
Wyden also has pressed for a “ballpark” estimate of the number of Americans’ communications incidentally collected. Litt said such a number cannot be provided with any reasonable degree of accuracy or effort, and without revealing sources and methods.
Renewing the law is the intelligence community’s top legislative goal. “I know of specific incidents, both involving terrorist attacks and other kinds of threats, where we have been able to thwart them or gain significant insight into them as a result of this collection activity,” Litt said. “This would really create a risk for our security if we lost this capability.”
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