In order to avert a government shutdown, lawmakers will vote on a short-term spending bill to fund the government until January 19. The bill also extends a controversial surveillance program, setting up a fierce fight on Capitol Hill over National Security and privacy protections for Americans early next year.
It's called the Foreign Intelligence Surveillance Act (FISA) and there's one section in particular that has some lawmakers reeling, Section 702.
The provision allows the National Security Agency (NSA) to gather intelligence on foreign nationals outside the U.S. Things like emails, phone calls, text messages, etc. can be collected and shared with other intelligence agencies in order to thwart threats against the U.S.
U.S. citizens are supposed to be excluded from the intelligence gathering, but Circa reported earlier this year that thousands of Americans were accidentally swept up in the intelligence. Usually this happens when the NSA intercepts communications between foreign persons and U.S. citizens.
Earlier this week, House lawmakers were circulating different bills to reauthorize FISA. One bill, originating from the House Intelligence Committee, would have renewed the law for four years. That may seem like a long time, but members of the intelligence community had hoped for an even longer or permanent re-authorization.
Members of the conservative House Freedom Caucus balked at the idea of attaching that bill to a spending package and even threatened to vote against a spending deal if they were not assured there would be open debate on the re-authorization of FISA next year.
Many Senators shared the same concerns.
"I will do whatever it takes, including filibuster any kind of permanent re-authorization or long term re-authorization," Kentucky Republican Sen. Rand Paul said in an interview.
Democratic Sens. Ron Wyden or Oregon and Patrick Leahy of Vermont pledged to do the same. Wyden is a member of the Senate Intelligence Committee and Leahy sits on the Judiciary Committee, both bodies are responsible for producing legislation to renew the law.
One of the biggest reforms some lawmakers want to see added to Section 702 is requirement that intelligence agencies go through the courts and obtain a warrant before collecting any data on Americans.
"That data shouldn’t be used for domestic crime because for domestic crime every American deserves the presumption of innocence and deserves the bill of rights to protect them and this means you have to go to a court before you collect information on Americans," Sen. Paul said.
But proponents of the provision say it already requires intelligence agencies to meet strict requirements, including obtaining permission from the Foreign Intelligence Surveillance Court before sharing data on Americans.
"This has not been a program that’s been abused," said Sen. James Lankford (R-Oklahoma), a member of the Senate Intelligence Committee.
"This is a program that’s been heavily reviewed, lots of oversight on it from multiple different layers both from courts, members of congress, outside groups, a lot of folks have been looking at this program to make sure it is consistent," he said.
Lankford added that the Section 702 provisions have stopped a lot of terrorist attacks and said he would support the House 4-year re-authorization bill should it make its way to the Senate.
Rep. Will Hurd (R-Texas), a member of the House Intelligence Committee said he believes lawmakers can "walk and chew gum at the same time," that is to say they can re-authorize the program while still having a healthy debate over how to improve privacy protections for Americans.
"The most important thing is we can't allow a gap in coverage," he said.
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