Fight brews over warrantless surveillance

Bipartisan coalition seeks new limits on government.

WASHINGTON — Obscured by the furor over surveillance set off by the investigations into possible Trump campaign coordination with Russia during the election, a major debate over electronic spying that defies the usual partisan factions is quietly taking shape in Congress.

The debate centers on the National Security Agency’s incidental eavesdropping on Americans via its warrantless surveillance program, which spies on foreigners abroad whose communications pass through U.S. phone and internet services. Its legal basis, the FISA Amendments Act, is set to expire at the end of 2017.

A bipartisan coalition of privacy-minded lawmakers has started to circulate draft legislation that would impose new limits on the government’s ability to use incidentally gathered information about Americans who are in contact with foreign targets.

Many of those lawmakers are veterans of a fight two years ago over the USA Freedom Act, a law that ended an NSA program that gathered Americans’ calling logs in bulk. They won that fight against security hawks because the statute on which the program was based, part of the Patriot Act, was expiring and they were unwilling to extend it without ending the bulk collection.

The privacy advocates in Congress are using that same lesson this time around, hoping to leverage their colleagues’ concerns that the program will lapse if they fail to extend the law.

But the intelligence and law enforcement communities and their allies in Congress appear determined to extend the warrantless surveillance program law, Section 702 of the FISA Amendments Act, without changes. They are framing the debate as being about a program that is too important to be held hostage to any push for changes, lest gridlock kill it.

“This is a tool that is essential to the safety of this country,” then-FBI director, James Comey, told Congress at a hearing last week before his dismissal. “I did not say the same thing about the collection of telephone dialing information by the NSA. I think that’s a useful tool; 702 is an essential tool, and if it goes away, we’ll be less safe as a country. And I mean that.”

Comey also warned that one of the proposed changes — a new requirement that a warrant be obtained to search for Americans’ information in the surveillance repository — risked a failure to “connect dots” about potential threats.

But Rep. Ted Poe, R-Texas, sought to warn other lawmakers that Congress needed to impose a warrant requirement. “Privacy is being betrayed in the name of national security,” Poe told congressional aides at an event to discuss Fourth Amendment issues and legislation late last month.

There has already been some jostling over that idea. In 2014 and 2015, the House approved amendments to require warrants, but they died in negotiations with the Senate. When the idea came up again last year after the terrorist attack on a nightclub in Orlando, Fla., however, the House voted it down.

More broadly, two key members of the coalition that won privacy gains two years ago — Rep. John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, and Rep. Jim Sensenbrenner, R-Wis. — are discussing a draft bill, which is circulating among panel members.

A congressional staff member who described the draft on the condition of anonymity because it is not yet finalized or public said it incorporated a warrant requirement for U.S. searches — with certain exceptions — and would:

Restrict law enforcement from using information obtained or derived from warrantless surveillance except when investigating the most serious crimes, such as murder.

Reduce to three years from five years the time the government may retain raw, or unprocessed, messages collected without a warrant.

Codify a change that the NSA and Foreign Intelligence Surveillance Court recently made to the program, ending “about” collection from internet network searches of emails that talk about a foreigner being spied on but are not to or from that target.

Require disclosures from the government that are more complete, including forcing the FBI to say how often its agents ask for Americans’ information in national security cases, which it has declined to track.

According to a government report issued this month, the FBI only once in 2016 used information about Americans in the warrantless surveillance repository while investigating ordinary criminal cases. But its agents are believed to use it much more frequently for national security cases; other agencies, such as the NSA and the CIA, used 5,288 search terms associated with Americans for such queries last year.

The Trump administration has generally declined to discuss proposals for limiting the program. But the Office of the Director of National Intelligence recently said requiring a warrant to search for Americans’ information “would severely hamper the speed and efficiency of operations” to protect the country.

The program can be traced back to the Bush administration’s post-Sept. 11 warrantless wiretapping of international phone calls and emails, which bypassed a 1978 law requiring warrants.

Congress legalized a version of that activity in 2008 with the FISA Amendments Act. It permits the NSA, on domestic soil without a warrant, to collect messages of foreigners abroad from American phone and internet companies — including when they communicate with Americans. It also expanded the program from a counterterrorism tool to one that can be used for any foreign intelligence purpose.

The critics who want Congress to impose a warrant for any type of U.S. queries call the practice the “backdoor search loophole” in Fourth Amendment privacy rights. But in November 2015, the Foreign Intelligence Surveillance Court rejected a challenge to this practice, upholding the FBI’s rules as constitutional.

It was not yet clear that such searches were happening in 2012, when the FISA Amendments Act was last set to expire and Congress extended it without changes. But Edward Snowden’s 2013 leaks and related declassifications brought to light more information, and the furor over surveillance in conservative circles resulting from the Trump-Russia imbroglio has added a wild card.

Sen. Ron Wyden, D-Ore., a member of the Intelligence Committee and an outspoken critic of surveillance, said that affair “is helpful for the reformers’ cause because it is generating awareness about the topic generally.”

At a hearing in February, Rep. Trey Gowdy, R-S.C., told Comey that leaks about surveillance of Donald Trump associates’ contacts with Russians, though conducted under a different law, were “a threat to the reauthorization” of the FISA Amendments Act.

“Trust me, you and I both want to see it reauthorized,” Gowdy said. “It is in jeopardy if we don’t get this resolved.”

GABRIELLA DEMCZUK / THE NEW YORK TIMES “This is a tool that is essential to the safety of this country,” then-FBI director James Comey told Congress at a hearing last week about warrantless searches before his dismissal.