Senate Approves Changes to Surveillance Powers - Do You Support FISA Reforms?

UPDATE - 5/14/20 (2:50pm EDT): The Senate passed the USA FREEDOM Reauthorization Act as amended by the Leahy-Lee Amendment on a bipartisan 80-16 vote.

The bill will now return to the House, which could consider it as soon as Friday, where it must be passed without further amendment to reach the president's desk for enactment.

UPDATE - 5/14/20 (12:55pm EDT): The Paul Amendment wasn't adopted on an 11-85 vote. The Senate will now vote on passage of the USA FREEDOM Reauthorization Act as amended by the Leahy-Lee Amendment.

UPDATE - 5/13/20 (6:20pm EDT): The Senate adopted the Leahy-Lee Amendment on a bipartisan 77-19 vote, while the Daines-Wyden Amendment fell just shy of the necessary 60-vote threshold on a 59-37 vote.

Further votes on the Paul Amendment and passage of the underlying bill will occur tomorrow.

Countable's original article appears below.

What’s the story?

• The Senate this week is considering several amendments to the USA FREEDOM Reauthorization Act of 2020 (H.R. 6172) before voting on passage of the underlying legislation as amended, if amended.
• The bill would reauthorize and reform surveillance authorities under the Foreign Intelligence Surveillance Act (FISA), Section 215 of the PATRIOT Act, and the subsequent USA FREEDOM Act through December 1, 2023. 
• Its consideration comes following a watchdog report that found the FBI included 17 “significant inaccuracies and omissions” in its FISA applications to surveil a Trump campaign aide, and revelations that the Steele dossier played a “central and essential role” in the FBI’s FISA applications despite warnings it may have contained Russian disinformation.
• Those surveillance authorities lapsed on March 15, 2020, after the House passed the reauthorization bill on a bipartisan 278-136 vote on March 11th. On March 16th, the Senate couldn't reach an agreement to take up the House-passed reauthorization bill and instead unanimously passed a "clean" 77 day extension, which the House declined to consideration.
• The Senate is set to take votes on a series of several amendments Wednesday before it votes on final passage of the bill. All and final passage of the bill will be subject to a 60-vote threshold, and if any amendments are adopted the bill will have to go back to the House for approval before it can reach the president's desk. A breakdown of the amendments appears below in the order they will receive votes.

What are the amendments?

• Daines-Wyden Amendment: Offered by Sens. Steve Daines (R-MT) & Ron Wyden (D-OR), this amendment would prohibit Section 215 of the PATRIOT Act from being used for warrantless surveillance of Americans’ internet website browsing & internet search history. NOT ADOPTED 59-37.
• McConnell Side-by-Side Amendment: Offered by Senate Majority Leader Mitch McConnell (R-KY), this amendment would prohibit Section 215 of the PATRIOT Act from being used for warrantless surveillance of Americans’ internet website browsing & internet search history to the extent that such information constitutes a “communication” in the determination of courts. NOT OFFERED.
• Leahy-Lee Amendment: Offered by Sens. Patrick Leahy (D-VT) & Mike Lee (R-UT), this amendment would expand and strengthen the role of amicus curiae in the Foreign Intelligence Surveillance Court to advocate for privacy & civil liberties interests in cases related to activities protected by the First Amendment; “sensitive investigative matters” such as surveillance of a political candidate or public official; or the approval of new surveillance programs or technology. The amici could file appeals for review by the Foreign Intelligence Surveillance Court (FISC) or the Supreme Court. Additionally, the amendment would expand requirements for federal law enforcement to disclose exculpatory information in FISA applications. ADOPTED 77-19.
• McConnell Side-by-Side Amendment: Offered by Majority Leader McConnell (R-KY), this amendment would narrow the circumstances under which amicus curiae could be appointed to only include those involving new or significant legal interpretations, exceptional concerns for the protection of First Amendment rights, or involve a sensitive investigative matter (excluding probes of religious or political organizations and the media but including Foreign Agent Registration Act investigations). In FISA applications targeting political campaigns the use of information obtained from political rivals for that office would be prohibited. NOT OFFERED. 
• Paul Amendment: Offered by Sen. Rand Paul (R-KY), this amendment would prohibit law enforcement from requesting & the FISC from ordering electronic surveillance of a U.S. person, a physical search of a U.S. person’s property, use of phone call surveillance against U.S. persons, the production of tangible things related to a U.S. person,or other targeting of a U.S. person for the production of information. The U.S. government couldn’t use information obtained using FISA as evidence against a U.S. person in court, but U.S. persons could use that information against the government. Phone call surveillance targeting U.S. persons could only be conducted if a warrant is issued by a non-FISA court. FISA wiretaps couldn’t be used for domestic surveillance of U.S. persons. NOT ADOPTED 11-85.
• Possible side-by-side amendment offered by McConnell. NOT OFFERED.

Read and vote on the bill below:

— Eric Revell

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