With the terrorist-inspired Orlando shooting fresh in their minds, House lawmakers reversed course last week and voted to uphold the government’s ability to snoop through its data when it believes American citizens are involved in terrorism — suggesting the post-Snowden wariness of the NSA has dissipated.
The Thursday vote marked a defeat for civil libertarians, who in 2014 and 2015 won showdowns on the House floor, but whose support has dissipated as terrorist attacks in the U.S. and Europe have reshaped the debate.
The fight is over snooping programs targeting foreigners’ communications under Section 702 of the Foreign Intelligence Surveillance Act, but which also end up snaring Americans’ emails and phone calls. Intelligence agencies claim the right to go through that data when they are investigating terrorism and say it’s critical to preventing plots or learning about the contours of attacks, such as the one in Orlando, as they happen.
Civil libertarians argue that the data shouldn’t be collected in the first place and say if agents are going to peer into it, they should get a warrant before looking at Americans’ data under Section 702.
They won that fight on the House floor in 2014, garnering 293 votes — a veto-proof majority — in favor of requiring a warrant. They won again in 2015, albeit a diminished tally of 255 votes in favor. But last week the votes in support dropped below 200, losing to the intelligence backers in a showdown, 222-198.
“Congress should not abandon the Constitution in the face of terrorism,” said Rep. Thomas Massie, the Kentucky Republican who has forced the fight each of the past three years. “Unfortunately, proponents of warrantless surveillance mischaracterized our legislation and its bearing on the investigation in Orlando.”
During the floor debate last week, Rep. Chris Stewart, Utah Republican and a member of the House Permanent Select Committee on Intelligence, said that had Mr. Massie’s plan been in effect, agents couldn’t have run the name of Mateen or his wife through their databases, depriving investigators of Section 702 data.
“I want to protect our privacy and our constitutional rights. But objections to intelligence operations must be based on facts and not rumors or misunderstandings,” Mr. Stewart said. “Limiting access to critical law enforcement tools to stop these plots would directly put Americans in danger.”
The government’s snooping has come under stricter scrutiny since former contractor Edward Snowden shocked voters by revealing the extent of the National Security Agency’s bulk data collection under FISA and the Patriot Act. One program that drew the most attention involved the NSA collecting the metadata — the times, durations and numbers involved — in most Americans’ phone calls.
Congress last year passed a bill to officially cancel the NSA’s metadata program, requiring investigators to instead make requests of the phone companies every time they have a specific terrorist investigation to pursue.
But the NSA still collects data on foreigners and, it says, picks up data on Americans on the periphery of that.
Mr. Massie and Rep. Zoe Lofgren, California Democrat, who have led civil liberties efforts in Congress, said that collecting the data when it involves Americans — and, even more, looking at it in investigations — violates the Fourth Amendment.
Their amendment would have required investigators to get warrants to access the data. It also would have prohibited the government from requiring tech companies to install backdoor access for government agencies to defeat encryption.
The two sides disagreed over the effects of the amendment. Intelligence community supporters said the way the language was drawn could have prevented agents from accessing the data even with a warrant.
“You really have to be a lawyer to be able to comprehend this, but in fact according to the legislative text they’ve drawn up, there is not an exception provided for getting a warrant,” said one congressional aide who worked against the amendment.
The aide said classified briefings have been held for House members to become familiar with the extent of the government programs and their use in preventing terrorist attacks. Some 50 lawmakers have signed up for briefings.
It may have paid off: Dozens of lawmakers who voted with Mr. Massie and Ms. Lofgren in previous years flipped their votes last week. The switchers came chiefly from the Republican side of the aisle.
“The vote was a result of misinformation,” said Neema Singh Guliani, legislative counsel at the American Civil Liberties Union. “The reality is that Section 702 in its current form is a threat to Americans’ privacy and values. The fight over Section 702 is far from over, and we will continue to work with Congress to ensure that reforms are enacted.”
Last week’s vote is an early preview of the fight looming next year, when the Section 702 powers are due for renewal.
The country’s intelligence chiefs are already pressing Congress to keep the powers intact, saying they’ve helped disrupt potential plots.
FBI Director James B. Comey told Congress this year that while there could be debate over the use of the phone metadata program, there cannot be any doubts that the broader Section 702 data collection on foreigners pays dividends.
“This is not even a close call,” Mr. Comey said. “If we lost this tool, it would be a very bad thing for us.”