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The privacy concerns at the heart of the FISA renewal debate

The House of Representatives voted to reauthorize a key provision of the Foreign Intelligence Surveillance Act, which U.S. intelligence agencies say is critical to collecting communications from overseas. But the complex issue has sparked some heated debate and seemingly contradictory tweets from the president. Judy Woodruff learns more from Susan Hennessey of Lawfare.

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  • Judy Woodruff:

    Now- a debate about privacy vs. national security that spills from Congress to the White House.

    On Capitol Hill, the House of Representatives today voted to reauthorize a key provision of the Foreign Intelligence Surveillance Act, known as FISA Section 702.

    The U.S. intelligence agencies say that provision is critical to their work, allowing them to collect communications from non-U.S. citizens located overseas. But, in the process, they also incidentally sweep up the private communications of some American citizens and they can store and search those without a warrant.

    This issue tipped off a heating exchange on the House floor.

  • Rep. Steve King:

    I rise in support of the 702 reauthorization.

    It is critical to our national security. You would see the color drain out of the faces of all of our security personnel, the entire security, national security community, if we lost the ability and went dark.

  • Rep. Zoe Lofgren:

    When you say incidental collection, it sounds like it’s not much. Well, the fact is, it’s a huge amount of data. We have time to do this right. We have time to make sure that the Fourth Amendment is adhered to in the reauthorization of 702.

  • Judy Woodruff:

    At the White House this morning, President Trump sent a series of tweets that seemed to contradict his own position on FISA. He initially tweeted skepticism, falsely claiming that the Obama administration used FISA to spy on his campaign.

    About 90 minutes later, he walked back that claim, saying — quote — “We need it.”

    Well, to unpack this complex issue, I’m joined by Susan Hennessey, a former attorney with the National Security Agency. She’s now a fellow at the Brookings Institution. And she is executive editor for the web site Lawfare on the intersection of national security and the law.

    Susan Hennessey, welcome back to the NewsHour.

  • Susan Hennessey:

    Thanks for having me.

  • Judy Woodruff:

    So, FISA, a big piece of legislation, but this particular provision, why was it up for renewal? Why is it so important, first of all?

  • Susan Hennessey:

    Right.

    So, Section 702, which is the provision at issue, is what allows the United States government to target foreign communications of individuals, foreigners reasonably believed to be located abroad for foreign intelligence purposes.

    So this is a critical national security authority. Most intelligence officials will actually point to it as one of the U.S. government’s most critical surveillance authorities.

  • Judy Woodruff:

    What does it enable intelligence agencies to do that they couldn’t otherwise do?

  • Susan Hennessey:

    So, while it’s all foreign-focused and directed at foreigners, it allows them to serve legal process on U.S. companies. So communications that are taking place between individuals abroad might transit U.S. infrastructure.

    And so this allows the United States government to go to those companies within the United States and obtain those communications.

  • Judy Woodruff:

    And, again, now, why is this provision up for renewal? Why was it expiring?

  • Susan Hennessey:

    So, this provision included what is known as a sunset provision. So, this is a provision that essentially makes the law go away, previously after five years. The bill that the House bill that was passed today has now six years.

    So the intention of these sunset provisions are essentially to force periodic debate. We don’t just want really important and sometimes controversial legislative authorities to sort of sit out there. And so this is a way to ensure that, every five years, every six years, at the conclusion of every period, Congress is actually going to take up the issue, overcome legislative inertia and decide whether or not the authority should continue and whether or not it should be modified or not.

  • Judy Woodruff:

    So, we just heard, Susan Hennessey, a little taste of the debate from Congressman King and then Congresswoman Lofgren.

    But a little bit more broadly, what is at the heart of this debate?

  • Susan Hennessey:

    Well, it is an incredibly wide-ranging and broad debate.

    Part of is really just sort of about first principles, right? How should the United States be conducting foreign intelligence surveillance in general?

    One of the most controversial provisions here, however, was related to what is known as post-collection clearing. So that is, after the U.S. government has collected information targeted at foreigners, oftentimes, U.S. persons’ information, Americans’ information is incidentally collected.

    So that is collection that isn’t intentional, but also isn’t exactly accidental. They know that this is going to occur. Once it in government databases, there is a debate and an ongoing debate about what rules should apply when the government seeks to search those databases for U.S. persons’ information, their communications in instances in which they have never obtained a warrant.

  • Judy Woodruff:

     And the opponents are worried, understandably, that there is going to be some information shared that shouldn’t be, that really isn’t a part of any international intelligence, or shouldn’t be part of any intelligence-gathering.

  • Susan Hennessey:

    Right, so really their fundamental concern is that this information was collected without a warrant in a very specific context, a context related to foreign intelligence.

    So, what they are concerned with is, that if that justification doesn’t follow through all the way to the end, that might allow law enforcement to look at otherwise protected communications for regular criminal prosecution purposes, and without ever getting that warrant, and that that is not appropriate or acceptable under the Fourth Amendment.

  • Judy Woodruff:

    So, let me ask you about what President Trump was tweeting this morning and about the significance of it.

  • First off, at 7:

    30 this morning, he has a tweet where he in essence is slamming FISA, the Foreign Intelligence Surveillance Act. He is asking if this is the act that, in his words, may have enabled or made it possible for this surveillance, he said, of his campaign by this British intelligence official, the so-called dossier.

    But about an hour-and-a-half later, he tweets, “We need FISA.”

    What does all that add up to? How do you interpret it?

  • Susan Hennessey:

    Right.

    So, certainly, the president’s first tweet was incredibly surprising. His administration has supported clean reauthorization of Section 702. So, actually, they wanted the bill to be reauthorized without any changes whatsoever. His staff, his own White House staff, has been working very, very hard. This was a top legislative priority.

    He woke up this morning and seemed to essentially say he didn’t think that this law should be used. We should note that there is no evidence to underline — there is no evidence behind those claims that this was part of the Obama administration’s surveillance of Trump campaign officials.

    And so he appears to be conflating it with another controversy. We don’t know what happened in that intervening 90 minutes, but I think it is reasonable to assume his staffers explained to him the importance of this particular piece of legislation, and that it was his own administration’s position that it should be reauthorized.

  • Judy Woodruff:

    So, Susan, the timing of this is important, because these tweets were taking place just a short time before the House of Representatives was about to vote on this.

  • Susan Hennessey:

    Right, so this was extraordinarily delicate sort of politics and the president’s sort of bull in a china shop mere hours before the floor vote.

    So, now the bill has passed the pass, and it will go over to the Senate. The House really was the place in which there was some question about what form it was going to be passed in. There might be some minor modifications on the Senate side. Some senators, including Senator Ron Wyden, Senator Rand Paul, have expressed concerns and even an intention to filibuster.

    But, broadly, it is believed that there are the votes to pass essentially in the form that it passed the House in the Senate.

  • Judy Woodruff:

    And that would be within a few — a matter of a few days?

  • Susan Hennessey:

    Right.

    So, in December, Congress reauthorized for a very short period, just three weeks, so the bill, the underlying statute will expire now on January 19. So they are running out of time. So, the Senate will have to act before that, that expiration.

  • Judy Woodruff:

     But the bottom line is, much of the intelligence community breathing a sigh of relief for today.

  • Susan Hennessey:

    Absolutely.

  • Judy Woodruff:

    Susan Hennessey, thank you very much.

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