The House is set to vote on Thursday on a controversial renewal of the National Security Agency’s (NSA) warrantless surveillance program — a vote that could give privacy advocates an unexpected victory.
If the legislation passes in its current form, the Senate is expected to quickly take it up before the law authorizing the program expires on Jan. 19.
But the House is also expected to vote on a bipartisan amendment imposing a series of restrictions on the program designed to protect Americans who are swept up in government spying on foreigners overseas.
The night before the vote, the fate of the amendment — from Rep. Justin Amash (R-Mich.) — was still an open question.
Supporters of the amendment were bullish about their chances, and even backers of the underlying measure conceded that the vote on the amendment is likely to be extremely tight.
“We don’t know, but despite the statements that they have the votes to bring it down, I don’t think they do,” said Rep. Louie Gohmert (R-Texas), who supports the privacy amendment. “I don’t think anyone can know for sure right now.”
At issue is a law passed in 2008 — known as Section 702 of the Foreign Intelligence Surveillance Act (FISA) — that 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 that critics say are necessary to ensure Fourth Amendment protections for people swept up in surveillance. The push seemed to gain some momentum even over the objections of the Trump administration.
House Judiciary Chairman Bob Goodlatte (R-Va.) has long said that a clean reauthorization of Section 702, without any changes, would not pass the House, where the powerful 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.
But lawmakers were unable to coalesce around a single proposal and punted the issue to 2018 in the midst of a fierce debate over an end-of-the-year funding measure — giving privacy advocates an opening to secure a vote on the Amash amendment.
The underlying legislation is a carefully crafted version of a House Intelligence bill that incorporates elements of a competing Judiciary Committee proposal. It would require the FBI to obtain a court order before reviewing the content of queries for Americans’ information in the database — though an order would not be required to search the database in the first place — and allow such an order only when investigators want to use the information in a criminal case.
The top Judiciary Democrat, Rep. Jerrold Nadler (D-N.Y.), has called the reform a “fig leaf” — national security cases account for the vast majority of queries, and the change would also not prevent authorities from using information obtained in the course of a national security investigation to start a criminal investigation later.
The Amash amendment would replace the entire text of that legislation with one of the most reform-heavy proposals put forward. It would require investigators to obtain a warrant in order to search the 702 database for Americans’ information in criminal cases.
Similar versions of the Amash amendment have passed the House before, in 2015 and 2014, although they were stripped out before the funding bill reached President Obama’s desk.
The issue does not divide along party lines, and Democrats will be watched as closely as Republicans on Thursday. The House Intelligence Committee’s top Democrat, Adam Schiff (Calif.), said they were not whipping votes on the measure and added, “It’s hard for me to predict what the vote count will be tomorrow.”
A Democratic aide noted said, “We’re already seeing members who voted ‘no’ on the last iteration switch to supporting Amash-Lofgren,” referring to Rep. Zoe Lofgren (D-Calif.)
The White House has backed the underlying legislation and has been calling members urging them to vote against the Amash amendment. Supporters of the compromise measure still think they will eke by with a win.
“I think the underlying bill will pass. I think the amendment will be vigorously debated and at the at the end of the day it will not pass,” said Rep. Doug Collins (R-Ga.), who is a member of leadership.
But, he allowed, “It’s gonna be tight.”
A number of House Intelligence Republicans were far more dubious.
“I don’t know,” said Rep. Chris Stewart (R-Utah). “I can tell you there’s a little concern.”
–Scott Wong contributed.