Politico

By Martin Matishak

06/02/2017 05:02 AM EDT

Although the year isn't half over, the congressional calendar is rapidly dwindling for lawmakers working to reauthorize controversial digital spying programs, creating an unexpected boon for those looking to rein in the efforts.

Several widely used snooping tools that scoop up the online chatter of foreign targets are set to expire at the end of the year, a prospect that the intelligence community has warned would have dire consequences for national security.

While most lawmakers agree that the powers should be reauthorized in some form, a privacy-minded coalition of Republicans and Democrats is looking to leverage the year-end deadline to inject greater protections for Americans' personal information that is incidentally swept up by the muscular instruments.

And as Congress hurtles toward the summer months — and a long August recess — even proponents of a so-called "clean" reauthorization with no changes concede that the shortened timeline might benefit the revisionists on Capitol Hill.

"Deadlines always give the people who are against something leverage," Florida Sen. Marco Rubio, a Republican member of the Senate Intelligence Committee and clean reauthorization advocate, told POLITICO. "Because if nothing happens, they get what they want." 

Negotiations for a reauthorization bill have barely begun. And according to Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), Congress likely won't see any legislation until September, when lawmakers will be drowning in contentious budget negotiations leading up to the Sept. 30 end of the fiscal year. That leaves lawmakers just a handful of legislative weeks to hammer out their disagreements before the Dec. 31 deadline.

At the center of the battle is Section 702 of the Foreign Intelligence Surveillance Act, or FISA. The section authorizes several critical digital surveillance programs — including Prism and Upstream — that scan internet traffic for communications and web browsing activity linked to overseas targets.

Intelligence officials claim the efforts are vital to America's fight against overseas terrorism, and even critics are inclined to agree. But civil liberties-focused Republicans and left-leaning Democrats worry that the programs also sweep up potentially vast quantities of private information on Americans without a warrant. And that information, they note, can theoretically be used to prosecute Americans for various crimes.

Republicans are also angry that the programs have led to the potential "unmasking" of Americans' identities in intelligence reports, which are supposed to protect — or mask — the personal information of U.S. citizens. Particularly, some GOP members want to hold up reauthorization until they get answers about how certain members of the Trump transition team were unmasked in intelligence reports created during the Obama administration.

For now, the momentum to re-up Section 702 is occurring in the House, yet little tangible progress has been made.

"Although we believe that the House will act first, we are still in the consensus developing phase of pulling a bill together," said a House Judiciary Committee aide. "Right now, that consists of creating a menu of options for Democrats and Republicans to review."

 

Developing a bill requires careful negotiations between several committees that claim jurisdiction on the issue, principally Judiciary and Intelligence. But another House aide noted that the staffs of these two committees only recently started meeting and that no negotiators have been selected.

 

However, the FBI has been "proactive" about providing resources and briefings to lawmakers, the aide told POLITICO.

A bureau spokesperson confirmed that the agency's congressional liaisons this week gave hours-long, informational seminars to staffers for both chamber's Judiciary and Intelligence committees.

The spokesperson said the briefings focused on the FBI's use of Section 702 and that another session was planned, but declined to say who would receive it.

Revisionists have a laundry list of changes they would like to see made to these programs. They're pushing to inject a requirement that officials obtain a warrant before searching for Americans' information collected under Section 702. They also want to slash the amount of time the government can retain such information and narrow how much chatter is picked up in the first place. Finally, they want to codify into law the National Security Agency's recent decision to stop collecting digital communications that merely mention foreign surveillance targets.

"I think more and more people on both sides, Republicans and Democrats, are taking a closer look at 702 and some of the abuses by the NSA," claimed Rep. Ted Poe (R-Texas), a libertarian-leaning revisionist who said the time crunch "absolutely" benefits his agenda.

Like many of his similarly minded colleagues, Poe wants to prioritize eliminating so-called "reverse targeting," a term privacy advocates use to describe how officials can use data collected without a warrant under Section 702 to prosecute U.S. citizens.

Oregon Sen. Ron Wyden (D) has also harangued intelligence leaders to provide an estimate of the number of Americans who have had their communications hoovered up by the programs, insisting such information is necessary to determine how to rewrite Section 702. But intelligence officials have countered that the figure Wyden and others are demanding is difficult to produce without infringing on the privacy rights of Americans, creating another potential reauthorization sticking point.

"The clock is really ticking down," he told POLITICO. "Now on the plus side, I think there's a lot more awareness of the issues ... but what we've clearly got to turn around is the pace of actually having the public and the Senate and the Intelligence Committee look at specific issues."

Hanging over all of this is what the Trump administration will do. Aside from the FBI outreach, the White House is on record as wanting the "clean" reauthorization that lawmakers on both sides of the aisle say isn't going to happen.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) — who made renewal a top priority at the start of the new Congress — conceded there is a "strong need" to reauthorize "given the ongoing, international terrorist threat," and said he will continue to consult with the White House on the topic.

"However," he added, "there is not support in the House for a clean reauthorization of this intelligence-gathering program."

Senate Majority Whip John Cornyn (R-Texas), who has repeatedly called the snooping programs the "crown jewels" of the U.S. intelligence community, agreed that Trump might not get his wish.

"It's one thing to want something, it's another thing whether it's possible or not," the Senate's top vote-counter told POLITICO.

Grassley shrugged off the administration's stance as a "bargaining position. 

California Rep. Adam Schiff, the House Intelligence Committee's top Democrat, said that, for now, he didn't think there is "any danger of a veto."

"If Congress comes to agreement on something, the White House is going to have to accept it because they recognize the imperative of continuing this program," he said. "I hope we don't have a legislative cliffhanger on this."

Still, surveillance critic Rep. Zoe Lofgren (D-Calif.) warned against asking for too much.

"I do think that it can go both ways, the leverage," she said. "The main thing is to have a solid product that people can support. We've had a bipartisan coalition on this for a long time. I'm hoping it sticks."

To view online:

https://www.politicopro.com/cybersecurity/story/2017/06/spying-critics-see-upper-hand-in-congressional-time-crunch-157588