House Expected to Consider Senate-Amended FISA Reauthorization Bill on May 27; Passage Unclear

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Highlights

  • The U.S. Senate passed legislation that would extend and update the Foreign Intelligence Surveillance Act (FISA), which expired on March 15, 2020, as well as relevant provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004.
  • The bill would reauthorize three significant government authorities — with some reforms — to collect information and investigate foreign espionage and terrorism, including the "business records," "lone wolf" and "roving wiretaps" provisions.
  • The measure now returns to the U.S. House of Representatives, which is expected to consider the amended Senate version on May 27, 2020.

The U.S. Senate passed the USA FREEDOM Reauthorization Act of 2020 (H.R. 6172) by a vote of 80-16 on May 15, 2020. The measure would extend and update until Dec. 1, 2023, the Foreign Intelligence Surveillance Act (FISA), which expired on March 15, 2020, as well as relevant provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004. The bill now heads back to the U.S. House of Representatives, which passed its version on March 11, 2020, and will need to pass the amended Senate measure before it can be sent to the president for his signature.

The bill would reauthorize three significant government authorities — with some reforms — to collect information and investigate foreign espionage and terrorism, including the "business records" (Section 215 of the USA Patriot Act of 2001, amended by the USA FREEDOM Act of 2015), "lone wolf" and "roving wiretaps" provisions. The business records provision allows the Foreign Intelligence Surveillance Court (FISC) to issue orders for third parties to provide "tangible things" (records, documents, etc.) if certain requirements are met. The roving wiretaps provision allows the government to obtain surveillance orders for individuals who change phone lines or devices to avoid traditional wiretaps. Finally, the lone wolf provision allows the FISC to issue orders to monitor foreigners in the U.S. who are suspected of aiding terrorists without being tied to a terrorist organization. However, the bill would repeal authority for the collection of "call detail records," which was the subject of controversy in 2013 over bulk metadata phone collection.

The Senate also considered several amendments to the bill but only adopted one (S.A. 1584), which was sponsored by Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) to provide more legal protections for some targeted individuals. The proposed amendment includes reforms to the appointment authority regarding individuals to serve as amicus curiae, as well as disclosure requirements for relevant information. In effect, the amendment would bolster the role of outside legal experts in FISC hearings. Separately, an amendment (S.A. 1583) introduced by Sen. Ron Wyden (D-Ore.) to block warrantless surveillance of web browser search history narrowly failed with 59 of the 60 votes needed for adoption. Sen. Rand Paul's (R-Ky.) amendment (S.A. 1586), which would have established that FISA court provisions cannot be used against U.S. citizens, also failed.

The House is expected to consider the new Senate version of the bill on May 27, 2020, but whether it will pass and head to the president for his signature remains unclear.

Sen. Lindsey Graham (R-S.C.) recently told reporters that "[t]he problem is this passed the House overwhelmingly. Sending it back to the House could shut things down, I'm afraid, when it comes to reauthorizing the surveillance programs we need." To that end, some lawmakers including Rep. Zoe Lofgren (D-Calif.) plan to push for additional surveillance restrictions, which have previously failed to attract enough support. The bill also could face opposition from the administration. The U.S. Department of Justice (DOJ) issued a statement expressing appreciation of the Senate's reauthorization of the three expired national security authorities but opposing the amended bill on the grounds that it "would unacceptably degrade our ability to conduct surveillance of terrorists, spies and other national security threats."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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