Congress Could Defer Section 702 Surveillance Bill to End of Year
Prospects are dim for a vote on a stand-alone bill reauthorizing Section 702 Foreign Intelligence Surveillance Act authority before it expires Dec. 31, so reauthorization may take another pathway, lobbyists and privacy advocates told us. Three Senate and two House bills are vying for support, with negotiations continuing on a compromise measure that could be wrapped into a year-end spending bill. Congress is set to pass a short-term spending bill Friday that Senate Majority Leader Mitch McConnell wants to “keep clean,” tweeted a McConnell aide Monday, which would mean a second spending bill would need to be passed right before the holidays.
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"We're in conversations with the House to have common language and hope to have that completed no later than next week," Senate Intelligence Committee Chairman Richard Burr, R-N.C., told us Wednesday. “We’re entering a tricky time as the deadline gets closer and closer,” Software Alliance Vice President-Legislative Affairs Craig Albright said. “We want to make sure there’s no rolling back of privacy protections. Any movement away from that would create serious concerns.” There's "no clear plan and time is running out,” said Constitution Project Senior Counsel Jake Laperruque.
In the House, support for a straight reauthorization with no added privacy protections, which is the administration’s preference, faces opposition from Freedom Caucus members who want “substantial reforms” to the surveillance authority. But the caucus hasn't “put out a road map” on how to push consensus for a bill that would add privacy protections, Laperruque said. Another option is a short- or medium-term reauthorization of the program with no changes as part of a year-end omnibus or continuing resolution. Privacy groups and some members of Congress oppose this approach, but experts said the House doesn’t have sufficient votes to block it, and the Senate is more inclined to go along with the administration’s desire for a clean and permanent reauthorization (see 1710130047).
Privacy groups and companies engaged in global commerce hope for a bill that adds privacy protections and includes a sunset to ensure the program gets another look by Congress. The section, which allows NSA to spy on foreign targets, is controversial because communications of innocent U.S. residents can get swept into surveillance. The USA Rights Act (S-1997) sponsored by Sens. Rand Paul, R-Texas, and Ron Wyden, D-Ore., would expire Sept. 30, 2021; the House Intelligence bill (HR-4478) Dec. 31, 2021; House and Senate Judiciary bills (HR-3989; S-2158) Sept. 30, 2023; and the Senate Intelligence bill (S-2010) Dec. 31, 2025. S-1997 and S-2158 haven't had committee votes.
Some worry a reauthorized section that doesn’t include additional privacy safeguards and sunset could provoke European regulators, who pushed for stronger privacy protections. The U.S.-EU Privacy Shield framework (see 1712060001) “could really blow up in the administration’s face if any of the current bills become law,” said Cato Institute Senior Fellow Patrick Eddington. Access Now told the European Commission’s Data Protection Unit in July (See 1707060006) that 702 needs “substantive changes” to show the U.S. is serious about protecting human rights.
Most reforms under consideration in bills aren’t about changing the underlying 702 authority but “making sure it is used appropriately,” said Tommy Ross, Software Alliance senior policy director. “There are lots of different ways to ensure” government will do so, either through procedural safeguards, additional reporting or strengthening the role of the Privacy and Civil Liberties Oversight board, he said.
Getting an effort mobilized to push Congress to work toward a privacy-friendly bill could be difficult, with limited time and few companies or trade groups making concerns public, experts said. Google, Apple, Microsoft and Facebook are members of the Reform Government Surveillance coalition, which posted its objection to HR-4478, which the Intelligence Committee approved in a partisan vote Friday (see 1712010044).