Trump: “Kill FISA”

Patrick G. Eddington

Late yesterday (April 9), the House Rules Committee held a marathon hearing to set the terms of debate, including allowable amendments, for the controversial Reforming Intelligence and Securing America Act (RISAA, H.R. 7888), the bill to reauthorize the soon‐​to‐​expire Foreign Intelligence Surveillance Act (FISA), and specifically the repeatedly abused Section 702 of the law. And as you can see from the screenshot from TruthSocial, former President Trump weighed in very early this morning against FISA even being reauthorized.

For surveillance reformers, the news out of the Rules Committee is mixed. An amendment to require the FBI to get a probable cause‐​based warrant to access the stored communications of Americans collected under Section 702 was made in order. However, the also much‐​sought ban on the ability of the FBI to simply buy US person information from data brokers (like RELX) was not among the amendments approved for floor action. Instead, it will (theoretically) be brought up for a vote on Friday under what’s known as “suspension of the rules,” which in House procedural parlance means the bill (offered by Rep. Warren Davidson (R‑OH)) would need to get the support of two‐​thirds of House members to pass.

There are concerns among privacy and civil liberties advocates that vehement scare‐​tactic lobbying against Davidson’s bill by the Biden administration and federal intelligence and law enforcement agencies might frighten enough House members into voting against it to doom it on the House floor. And even if the House passes Davidson’s bill, it faces an uncertain future in the Senate.

House Intelligence Committee leaders succeeded in getting some of their amendments approved for floor action, including a provision that would change the definition of electronic surveillance in a way that would vastly increase the scope of Section 702 collection. The Center for Democracy and Technology (CDT) has an excellent explainer on why this amendment would be catastrophic to privacy and civil liberties if adopted.

The same is true for a proposed amendment that would add narcotics trafficking to the list of allowed uses of 702 collection, a move that seems guaranteed to expand the number of people (including Americans) whose information will be swept up by the 702 program. Proponents of the amendment seem not to understand that further securitizing America’s approach to drug addiction will not solve what is by definition a condition requiring medical treatment and counseling, not more privacy‐​violating surveillance.

Finally, as of the morning of April 10, it’s unclear whether the rule (i.e., the legislative vehicle setting the terms of the debate and allowable amendments) will itself actually pass the House. Rep. Matt Gaetz (R‑FL) has indicated his intention to vote against the rule. As House Democrats can be expected to vote against the rule, given the House GOP’s one‐​vote margin right now, if Gaetz carries out his threat (and especially if even a few of his House GOP colleagues join him) the rule vote would fail—restarting the entire process at the House Rules Committee.

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