(CN) – The House Thursday narrowly approved a long-term extension of controversial online spying methods hours after President Donald Trump sparked confusion with successive tweets that first condemned, then supported the measure.
The program, known as Section 702 of the Foreign Intelligence Surveillance Act, allows U.S. spy agencies to collect information on foreign targets outside the United States. Americans’ communications are inadvertently swept up in the process and privacy advocates and some lawyers want to require the FBI to get a warrant if it wants to view information on Americans that is in the database to build domestic crime cases.
The FBI and intelligence agencies say being able to query the database is essential to keeping America safe.
Lawmakers in the House weighed whether the FBI should have to get a warrant to either query information on Americans in the database or seek a warrant only if the FBI wants to view the actual contents of the material and use it for investigating and prosecuting domestic crimes.
On Wednesday, the White House issued a statement opposing changes to the program.
On Thursday, Trump tweeted: “This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?”
Minutes later, he backed the program, tweeting: “With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get Smart!”
Prior to the vote, House Minority Leader Nancy Pelosi, D-Calif., called on Speaker Paul Ryan, R-Wis., to pull a bill, arguing Trump’s tweets effectively muddied the debate over the measure.
But Ryan pressed ahead, wrapping up the debate on the reauthorization bill with a stern warning to lawmakers that without its passage, the U.S. would be “flying blind on protecting its country from terrorism.”
Recounting his time in the House before the Sept. 11 terrorist attacks on New York and Washington, D.C., Ryan said before FISA was put into effect, the U.S. intelligence community was trapped behind a “firewall.”
“I’ll give you two declassified examples of what this program has done: in March 2016, it gave us the intel we needed to go after and kill ISIS finance minister, [Abu Saleh,] the number two man in line to become the next leader of ISIS,” Ryan said. “This program helped us topple him.”
He also credited the law with enabling intelligence officials to foil plots to bomb the New York City subway system and the New York Stock Exchange.
The bill passed 256-164.
The measure now heads to the Senate, where it is also expected to pass. The White House has said Trump will sign the bill.
The House also voted, 233-183, to defeat an amendment to the bill, the USA Rights Act. The amendment, proposed by Sen. Ron Wyden, D-Ore., and Sen. Rand Paul, R-Ky., called for an end to backdoor searches on Americans, required feds to obtain a warrant before conducting an investigation on a target and also barred so-called “about” surveillance.
“About” surveillance gives authorities the power to look into an individual who might simply be talking about a target. The practice was halted in April after the Foreign Intelligence Surveillance Court dubbed the method an overreach into privacy.
Ryan said passage of the USA Rights Act would have forced the U.S. to ‘go dark.”
“We don’t know what terrorists are up to, we can’t send that information to our authorities to prevent a terrorist attack. The consequences are really high,” he said.
Sen. Wyden said Thursday’s passage of the FISA extension would do “absolutely nothing” to defend Americans against warrantless searches, and blasted the bill’s opponents for using a campaign of “fear-mongering and misinformation” to see the extension pushed through.
“Nevertheless, with 183 House votes [for the USA Rights Act], it is clear there is a growing bipartisan coalition to protect innocent Americans from warrantless spying, and that knows it is possible to stand up for Americans’ rights while also keeping our people safe from foreign threats,” Wyden said. “The Senate must allow real debate and amendments, and not push this legislation through in the dark.”
Sarah St. Vincent, a researcher specializing in U.S. surveillance at Human Rights Watch in New York, held out some hope the bill would be defeated in the Senate, but conceded during an interview with Courthouse News, that outcome is unlikely.
“We have always thought Section 702 should have simply been allowed to expire,” St. Vincent said. “It’s warrantless searching … there’s no judge who signs off on the government’s individual decisions of whom to surveil. This shadowy practice really lends itself to abuse. And the House bill doesn’t do enough to rein this in.
“What you have is a very large scale violation of rights of non-U.S. persons overseas and those citizens they come into contact with who can be surveilled at will,” St. Vincent said. “All the government has to do is say it has a significant purpose for its own ‘foreign intelligence’ search. That’s a very broad term. It’s vague. It could encompass collection on activists, journalists, nearly anyone.”
Equally troubling to St. Vincent is that authorities are not required to disclose how often they uses found data to criminally prosecute people.
“Intelligence agencies and the FBI have refused to disclose estimates [on the number of] communications [surveilled] or how many warrantless queries have taken place,” she said.
St. Vincent said she would much rather see 702 end altogether but if any grand scale surveillance must occur, monitoring under Title I of the Foreign Surveillance Intelligence Act – alone – would be preferable.
“It’s not perfect, but it is better,” she said.
Under Title I, judges need to review surveillance requests on a case-by-case basis, and to sign off on warrants requesting access to specific targets based on probable cause.
“Again, it’s still vague, but [Title I] is still much, much narrower,” she said.
Neema Singh Guliani, policy counsel with the American Civil Liberties Union, said in a statement Thursday the legislation’s passage granted powers beyond any a president or administration should have.
“The government will use this bill to continue warrantless intrusions into Americans’ private emails, text messages, and other communications,” Guliani said. “Yet, members of Congress just voted to hand it to an administration that has labeled individuals as threats based merely on their religion, nationality, or viewpoints. The Senate should reject this bill and rein in government surveillance powers to bring Section 702 in line with the Constitution.”
But Robert Litt, former general counsel for the Director of National Intelligence, said Wednesday “the House has voted … to reauthorize one of the most important tools that our intelligence agencies have to protect Americans against terrorists and other foreign threats, while providing additional protections for privacy.”