Lawmakers look to punt controversial surveillance law debate to 2018

Lawmakers struggling to meet a year-end deadline to renew a controversial but critical surveillance program are eyeing a short-term extension that would punt the issue to the new year. 

Both chambers are considering a myriad of wildly different proposals to renew the National Security Agency’s (NSA) warrantless surveillance program, known as Section 702, before it expires on Dec. 31 — but lawmakers have so far been unable to coalesce around a consensus measure.

Meanwhile, days to reauthorize the program are running out as Republicans in both chambers scramble to pass a slate of high-profile, must-pass legislation. 

{mosads}In the Senate, Majority Whip John Cornyn (R-Texas) said it was “more likely than not” that lawmakers would insert language extending the program to the middle of January into a short-term funding bill expected to get a vote next week. 

“There’s at least three different versions of the 702 bill, and we need to provide some certainty that it won’t expire,” Cornyn told The Hill. “If there’s a continuing resolution, which there may be to get us over to January, it’ll be part of that [continuing resolution].” 

House leadership is also weighing the possibility, although Majority Leader Kevin McCarthy (R-Calif.) noted that they are still in discussions. 

House Judiciary Chairman Bob Goodlatte (R-Va.), who co-sponsored one of the main proposals, raised the idea during a closed-door conference meeting on Wednesday afternoon, according to a source familiar with the matter. 

Section 702 allows the NSA to collect texts and emails of foreigners abroad without an individualized warrant — even when they communicate with Americans in the U.S.

Throughout the fall, privacy advocates on Capitol Hill have pushed for changes to the law to curtail what critics say is an abuse of Americans’ Fourth Amendment protections — a push that seemed to gain some momentum even over the objections of the Trump administration. 

Goodlatte has long said that a clean reauthorization of Section 702 would not pass the House, where the powerful House Freedom Caucus has banded together with privacy-minded Democrats to advocate for tighter restrictions on how government investigators can use data gathered under the program.

The major competitor to Goodlatte’s bill is a proposal shepherded by the House Intelligence Committee, which includes few substantive reforms to the program but does place additional restrictions on the political hot-button issue of unmasking. 

Despite the ongoing disagreements, leadership in both chambers is determined not to let the overall authority expire. The intelligence community, which has been pushing for a permanent renewal of the law as-is, has warned that it is one of the most critical tools it has to identify and disrupt terror plots. 

“It’s very serious from the matter that we do not want [it] to lapse in any shape or form,” McCarthy said.

While the odds of a short-term extension of the authority seem to be increasing, what’s less clear is how long Congress will kick the can. Rep. Doug Collins (R-Ga.), a member of House leadership who sits on the Judiciary Committee, said he had heard a 30- or 60-day extension floated, but “not much more than that.” 

“We know basically where we’re at — but look, we’ve got tax, we’ve got funding. I think just move this into an environment were we can get our headspace around it,” he said.

Putting in a more permanent solution into the stopgap spending measure, Collins said, would “cause massive problems.” 

The idea appears to have fairly broad support across the various factions invested in the fate of the program — including members of the two House committees that share jurisdiction over the issue, Judiciary and Intelligence. 

“I think it’s hugely important for our safety and national security, but I don’t want that to railroad everything else that we have to get done before the end of the year,” said Rep. Tom Rooney (R-Fla.). 

The suggestion to “short-term [the Foreign Intelligence Surveillance Act] for a couple more months so that we can address it as a Congress by itself — I think that probably makes the most sense,” he said.

Even more reform-minded lawmakers, including privacy hawks such as Sen. Ron Wyden (D-Ore.), are cautiously supportive of the idea, believing it could allow the measure to face more robust debate and get a stand-alone vote on the floor. 

“Anything that ensures that there could be a public debate on an issue of this importance, I’m open to listening to,” Wyden said Thursday.

The sticking point will be the length of the extension. If leadership tries to shepherd through a yearlong extension under the guise of being “short-term,” reform proponents are likely to buck.

If a short-term extension does result in a stand-alone floor vote on the measure next year, it could give more privacy-minded lawmakers a better chance of pushing through substantive changes to the program. 

Supporters of the Judiciary bill — which includes the most substantive privacy reforms of the proposals under serious consideration — have long feared that leadership would simply attach a watered-down version of their legislation to must-pass legislation at the end of the year, or worse, try to jam through a clean reauthorization.

In the Senate, close watchers of the debate have long suspected McConnell would wait to see what the House, with its weighted group of reform advocates, wound up passing.  

At issue is whether federal investigators should be required to obtain a warrant before searching databases of Section 702-derived data for Americans’ information — permitted under the current law.

The Judiciary proposal 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 broad change sought by privacy advocates. It would also not put any restrictions on queries in national security cases, which constitute the vast majority of searches.

The Senate Intelligence Committee legislation includes some small reforms but eschews a warrant requirement entirely. 

House lawmakers have characterized it as dead on arrival in the lower chamber.