The U.S. House of Representatives voted this week to change the way the FBI and National Security Agency use the Foreign Intelligence Surveillance Act to conduct electronic surveillance of foreign nationals and agents in the United States. But President Donald Trump indicated Thursday that he might veto the bipartisan bill, saying he and his allies wanted more information about how the FBI's investigation of alleged ties between his 2016 presidential campaign and Russia was launched.
“Many Republican Senators want me to Veto the FISA Bill until we find out what led to, and happened with, the illegal attempted ‘coup’ of the duly elected President of the United States, and others!” Trump wrote on Twitter.
The FBI investigation, later taken over by special counsel Robert Mueller, has long been a lightning rod for criticism by Trump. The president frequently attacks it as an attempt to forestall his 2016 election and, later, to undo his presidency.
Last year, Attorney General William Barr ordered an internal Justice Department probe into the origins of the Russia election investigation, saying intelligence agencies had conducted “spying” on the Trump campaign. That investigation, led by U.S. Attorney John Durham, is ongoing.
House members voted 278-138 on Wednesday to reauthorize three key intelligence-gathering provisions in the law while strengthening surveillance standards and enhancing privacy protections.
Proponents say the bill, known as the USA FREEDOM Reauthorization Act, introduces major reforms. Among the backers are Barr and Senate Majority Leader Mitch McConnell. But opponents such as Republican Senators Rand Paul and Mike Lee say the reforms don’t go far enough to prevent abuse. Privacy advocates such as the American Civil Liberties Union have also come out against the legislation.
Here is what you need to know about FISA and the changes in the law.
What is FISA?
Enacted in 1978, FISA governs all electronic surveillance of foreign agents and nationals in the United States. The law set up a secret 11-member court to approve or deny foreign surveillance applications. To obtain an order, the NSA and FBI present the court with probable cause that a target is "a foreign power" or "an agent of a foreign power" inside the United States, and that the planned surveillance is for the purpose of gathering "foreign intelligence information." More than 99% of applications are approved.
What led to the changes?
The reforms follow controversy over the FBI’s surveillance of former Trump campaign adviser Carter Page in 2016 and 2017. A damning December 2019 report by the Justice Department inspector general revealed 17 “significant errors or omissions” in the FBI’s four separate applications to surveil Page during its investigation of Russian election meddling. FBI Director Christopher Wray ordered more than 40 “corrective steps” in response.
The FISA court later barred FBI agents involved in the Page surveillance applications from appearing in front of the court. The revelations led to calls by Republicans as well as privacy advocates to overhaul FISA.
What is in the new legislation?
In addition to extending three intelligence-gathering authorities, the new legislation ends the NSA’s authority under a now-defunct program to collect phone records of Americans. Among key reforms:
— It requires officials overseeing FISA applications to certify their accuracy prior to submitting them to the FISA court. Making a false declaration to the FISA court may result in a prison sentence of eight years, up from five years. The enhanced penalty also applies to unauthorized disclosures of FISA applications.
— It prohibits the NSA from collecting cell site and GPS data.
— It requires the attorney general to approve in writing an investigation if a target is an elected official or a candidate in a federal election.
— It expands the authority of judges on the FISA court to appoint an amicus curiae, or an impartial friend of the court, in cases that raise “exceptional concerns” about the First Amendment rights of a U.S. national under investigation.
What reforms weren’t approved?
The legislation does not enact other key reforms urged by civil libertarians and privacy advocates. Among them:
— A requirement that individuals receive notice and access to their FISA applications if they’re prosecuted on the basis of information gathered through electronic surveillance.
— A requirement that FISA court advisers be allowed to “raise any issue with the court anytime” and have access to all secret court documents and records.
— An explicit ban on collecting Americans’ web browsing history without a warrant.
— A limit on the types of information the government can obtain under a provision of the law known as Section 215. The provision allows the government to collect “any tangible thing,” and privacy advocates say it could include tax returns, gun records, book sales and library records.
