Lawmakers and civil liberties groups are pushing for additional changes to overseas surveillance legislation scrapped this week after House Republicans couldn’t agree on a path forward.
House leaders had planned votes on a pair of bills to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, which the intelligence community said needs to be extended to prevent imparing national security.
Renewal has been contentious as the program permits the warrantless collection of private messages in certain circumstances where Americans are in contact with foreign surveillance targets.
Speaker Mike Johnson (R-La.) thought he had a path forward, planning for the House to vote on dueling measures from the Judiciary (H.R. 6570) and Intelligence (H.R. 6611) panels, which propose different lengths and changes to the program.
But those plans were scrapped after a discussion of the details roiled a GOP conference meeting. Several members objected to the intended procedure that the Rules Committee was set to approve and called for a deeper debate into the measures.
Johnson told lawmakers in a Dec. 7 letter that he planned to put both bills up for floor votes and send the Senate the version with more votes – a procedure known as “queen of the hill.”
Rep. Tim Burchett (R-Tenn.) said that discussion during the GOP conference meeting showed there was no agreement among Republicans on which route to take with FISA.
Rep. Chip Roy (R-Texas) said any reauthorization bill shouldn’t be fast-tracked through Congress and should receive scrutiny from lawmakers. “We should be putting a bill on the floor and then amending it, debating it. This is that consequential,” he told reporters.
Civil Liberties Objections
Civil rights groups and lawmakers have raised concerned about the speed and scope of some of the FISA proposal put forward by the Intelligence Committee.
On Monday, more than 50 civil liberties, government accountability and privacy groups wrote to members of Congress to oppose the bill.
According to those groups, the measure could have widened the definitions of entities from which security personnel may extract data once a warrant has been obtained.
Sen. Ron Wyden (D-Ore.), who’s worked with a bipartisan, bicameral group on a rewrite, and Rep. Andy Biggs (R-Ariz.), the sponsor of the Judiciary panel-approved bill, also objected to the Intelligence bill.
Elizabeth Goitein, a senior director of the Brennan Center for Justice’s Liberty and National Security Program, warned that the House Intelligence bill could have could have introduced new legal challenges to an already shaky data-sharing agreement between the US and EU.
Next Steps
Consideration of the standalone measures—or a potential new version—will now be punted until 2024.
The powers set to expire at the end of the year would be extended through April 19 by the compromise National Defense Authorization Act (H.R. 2670) set for votes in both chambers before lawmakers adjourn for the holidays.
Johnson had initially wanted to keep the issue separate, as many Republicans oppose the inclusion in the must-pass bill, but he consented in the end.
After recess, he’ll have to decide whether to continue pushing for a “queen of the hill” approach, put one of the bills on the floor, or work with lawmakers on some sort of compromise agreement.
Rep. Guy Reschenthaler (R-Pa.), a member of the Rules Committee and the conference’s chief deputy whip, noted that Johnson could go a slightly different route with a “king of the hill” rule, which also ends with the bill with the most votes going to the Senate.
The “king of the hill” procedure is the predecessor to the “queen of the hill” rule, and provides that if more than one alternative bill is adopted, the one that last secures a majority vote is the one considered as finally adopted.
Reschenthaler said that the conference will “run whatever play the speaker calls” on FISA. There’s a will within the GOP to find a compromise between the Judiciary and Intelligence bills, which means it’s a benefit to have until April to decide, he added.
“I believe right now the conference wants to get one solid product to then send to the Senate,” he added.
Senate Path Also Uncertain
Any winning House FISA bill picked next year will have to be reconciled with the approach taken in the Senate, where there are alternate proposals in the mix.
Wyden’s bill (S. 3234), which he introduced in November with Mike Lee (R-Utah), would require warrants for surveillance of Americans’ location data, web browsing, and search records, including AI assistants such as Alexa and Siri.
Sens. Mark Warner (D-Va.) and Marco Rubio (R-Fla.), the leaders of the Senate Intelligence Committee, introduced legislation (S. 3351) last month that would include a prohibition on searches on Section 702 information that are solely designed to find evidence of criminal activity.
Both bills were sent to the Senate Judiciary Committee, which has yet to schedule a vote.
Chair Dick Durbin (D-Ill.) said in May that the FISA powers shouldn’t be reauthorized “without significant reforms to safeguard Americans’ privacy and constitutional rights” in a post on X, formerly Twitter.
Advocates for updating FISA warn that compromise language must allow the intelligence community to access new forms of communication such as TikTok, which they say is essential for protecting US citizens.
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