On the FISA Fracas

The Foreign Intelligence Surveillance Act (1978) is a federal law which allows the federal government to conduct surveillance of foreign powers and agents of foreign powers suspected of espionage and terrorism. FISA delineates procedures for acquiring warrants to a secret court when required.  FISA  has been repeatedly amended since the September 11, 2001 terror attacks.  The 2008 FISA Amendment included Section 702, which allows the Attorney General and the Director of National Intelligence to jointly authorize monitoring foreign targets abroad. 

Then President-elect Trump was scoffed at when he claimed that he was "wiretapped" at Trump Tower.  But Mr. Trump felt vindicated when the House Intelligence Committee revealed that some members of his transition team were caught up in FISA surveillance. In the digital age, physical "wiretaps" are no longer necessary.

  

But there is controversy over how to handle information about American citizens whose communications are caught up in a cyber surveillance sweep.   Additionally, there are serious concerns over approval of FISA warrants which involve partisan politics. 

FISA was due to the renewed for six years by the end of 2017.  However, FISA is now supposed to  to sunset by January 19th 2018 unless approved by Congress.  

As the House of Representatives were considering FISA re-authorization, Conservatives and Libertarian  (and perhaps some civil liberty minded liberal) Congressmen sought to impose some reforms on FISA to limit NSA powers and require warrants before getting most information on American citizens). As Rep. Ted Poe (R-TX 2nd)  put it: "Section 702 was written to go after terrorists but it is being used to go after Americans," as he urged agencies to get warrants.  Rep. Tom Garrett wanted to be certain that FISA scrutiny was focused on foreigners. 

It seemed as if the Trump White House was lending support to the efforts to reform FISA with encouraging social media comments.  However Speaker Paul Ryan contacted the White House and President Trump that partially walked back earlier criticism of FISA.  

The FISA alternative, championed by libertarian Republican Rep. Justin Amash (R-MI 3rd) and Rep. Zoe Lafgren (D-CA 19th) failed 183-233.  The GOP leadership re-authorization of FISA easily passed 256-164, but sponsor Rep. Devin Nunes (R-CA 22nd) stripped major changes to unmasking procedures prior to presenting the bill on the House floor.  

The Senate must re-authorize FISA by January 19th.  Libertarian Republican Senator Rand Paul (R-KY) and liberal Democrat Senator Ron Wyden (D-OR) have vowed to filibuster FISA unless there are provisions that the FBI must obtain a warrant anytime it wants to search information about Americans.  Newsmakers have hinted that explosive news  about abuse of government surveillance will break in the next week.  This may well have an impact on the re-authorization of FISA.