The House Intelligence Committee passed a bill Friday to restrain the government’s access to data collected under a powerful authority to collect foreign intelligence on U.S. soil, weighing in on what has become a wide-ranging debate, just days before Congress must act to keep the surveillance program from expiring.
The committee's bill would require government agencies to get a court order before viewing the content of communications to or from Americans in the National Security Agency's database of information collected under the authority, known as Section 702, in criminal cases. That proposal was first floated by the committee's ranking Democrat, Rep. Adam B. Schiff of California, and does not require a similar court order for viewing the contents of queries in national security cases.
But committee Democrats split from the GOP members Friday, voting against the bill because it included provisions to amend the government’s “unmasking” procedure, which they argued was a blatantly political attempt to resurrect a pet issue of President Trump.
Earlier this year, the committee’s chairman, Rep. Devin Nunes (R-Calif.), told reporters there was evidence that the identities of members of the Trump transition team were improperly unveiled — a charge that Democrats vehemently disputed and that eventually led the House Ethics Committee to investigate whether Nunes had divulged classified information.
“We’ve uncovered not a scintilla of evidence that there was ever any improper unmasking in the 702 program,” Schiff said, complaining that unmasking was a matter to debate in a separate bill. “This language is not only unnecessary, but in our view is simply an effort to politicize the 702 bill.”
Republicans rejected the accusation, arguing that stiffening the unmasking procedures is good policy, regardless of what happened with Trump and that Democrats were choosing to see political ghosts in the legislation. They added that even if there was no evidence of improper unmasking of information collected under Section 702, Friday’s bill was the best opportunity they had to make the changes.
“The reality is that this is the vehicle that’s moving the reforms that we want to do,” Rep. Thomas J. Rooney (R-Fla.) said.
The committee’s bitter partisan feuding comes as congressional leaders are trying to work out how to reauthorize the government’s Section 702 data-collecting authority before it expires at the end of the year. Extending the program is the intelligence community’s highest legislative priority, but lawmakers are insisting on making changes to the program to better safeguard the privacy of Americans whose information might be in the database.
In the past several weeks, lawmakers have filed at least five bills on the subject, three of which have received the endorsement of congressional panels. But with only weeks to go until the data collection authority expires, congressional leaders are expected to attach the matter of Section 702 reauthorization to a must-pass budget bill that Congress needs to vote on by Dec. 8 to keep the government open.
It is largely up to congressional leaders to select which legislative proposal will be included.
In October, the House Judiciary Committee approved a bill on a bipartisan basis requiring the FBI to obtain a warrant before viewing the information returned in response to any query seeking evidence of a crime. The requirement would not apply to counterterrorism, counterintelligence or counterespionage cases.
The Senate Intelligence Committee later adopted a bill that imposed only modest changes, requiring the FBI to submit a request to the Foreign Intelligence Surveillance court within one day of turning up information on “a known United States person.” The court then has two days to rule on the legality of the request. The proposed changes received the unanimous support of the committee, but left privacy advocates unsatisfied, because the court considers any request for a foreign intelligence or law enforcement purpose to be legal.
The House Intelligence Committee bill began as an attempt to carve out a spot in the middle, reflecting leaders’ doubts that the Senate Intelligence Committee’s legislation could get enough traction to pass in the House. Though it is highly unlikely that the House will consider legislation to reauthorize Section 702 outside the scope of the budget bill, committees are still attempting to influence congressional leaders’ decisions about what measure to include in the budget package.
On Friday, Schiff bemoaned the possibility that partisan splits on the House Intelligence Committee could make it more likely that the Senate Intelligence Committee’s extension would prevail in leaders’ discussions.
Should leaders be unable to agree on what limitations will accompany the reauthorization of Section 702, Congress is expected to pass a short-term extension to give lawmakers more time to work out a compromise.