House to Vote on Competing FISA Reform Bills: Protect Liberty Act & ‘PATRIOT Act 2.0’

The House this week will vote on two competing FISA reform bills, the Protect Liberty and End Warrantless Surveillance Act, and the other that has been derided by privacy advocates as the “PATRIOT Act 2.0.”

The House will consider two bills, H.R. 6570, the Protect Liberty and End Warrantless Surveillance Act, and H.R. 6611, the FISA Reform and Reauthorization Act of 2023. The bills will be considered by a “Queen-of-the-Hill” floor process, where whichever of these two bills gets the most votes wins, and will be the House’s preferred solution for Section 702 of FISA.

Both bills aim to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA); however, they would reform the controversial surveillance law in drastically different ways.

The House Judiciary Committee-advanced Protect Liberty and End Warrantless Surveillance Act would require a warrant for any American’s information sought under Section 702.

The legislation would also prohibit law enforcement and intelligence agencies from purchasing Americans’ private data through data brokers, a practice known as the “data broker loophole.” Rep. Andy Biggs (R-AZ), who was the primary sponsor of the Protect Liberty Act, decried this practice, believing it to be a run around the Fourth Amendment.

RELATED VIDEO — Rep. Andy Biggs: CDC Purchased $420K Worth of Data to Surveil Americans During the Coronavirus Pandemic:

The Judiciary bill would also limit how many FBI agents can search the Section 702 database and would set up penalties for violations under FISA.

FreedomWorks and Demand Progress noted that top FISA experts have expressed great concerns about the House Intelligence bill, referring to it as a “PATRIOT Act 2.0”:

In the words of top FISA expert and one of five handpicked FISA Court Amici, Marc Zwillinger, the Intelligence Committee’s legislation “greatly expand[s]” the number of businesses and their employees who could be compelled to spy on their customers and provide warrantless access to their communications systems pursuant to this extremely controversial FISA provision, Section 702.

According to the Amicus, it threatens to turn “data centers, colocation providers, business landlords, shared workspaces, or even hotels” into conduits for gag-ordered warrantless surveillance under Section 702, potentially even reaching “third part[ies] involved in providing equipment, storage, or even cleaning services to such entities.”

Demand Progress Policy Director Sean Vitka and FreedomWorks President Adam Brandon urged Congress to oppose the House Intelligence Committee bill and instead support the Protect Liberty Act, which they noted is supported by more than 50-plus organizations.

Vitka and Brandon said in a joint statement:

The FISA Reform and Reauthorization Act is a Trojan Horse for PATRIOT Act 2.0. Chairman Turner and Ranking Member Himes should be ashamed of themselves for either deliberately or incompetently writing legislation that would dramatically expand warrantless surveillance under Section 702 of FISA, the massive spying power that has been abused on a ‘persistent and widespread’ basis. This is staggering overreach that is absolutely at odds with the millions of Americans crying out for Congress to protect their privacy.

The House Intelligence Committee’s bill is a threat to literally every American as well as every American business. We’re sounding the alarm on this dangerous legislation: it must not pass.

RELATED VIDEO — Jim Jordan: There Are 204K Reasons to Oppose FISA Reauthorization:

FreedomWorks and Demand Progress also cited several of the recent Section 702 abuses:

• “[T]ens of thousands” of baseless searches “related to civil unrest” in a one-year period
  • including 141 racial justice protestors and thousands of January 6 suspects.
• Searches for individuals an NSA analyst had met on an online dating site, and a prospective tenant.”
• Searches for a state court judge who reported civil rights violations to the FBI.
• Searches for places of worship that were intentionally hidden from oversight.
• Searches for a member of HPSCI and a US Senator.
• A “batch” search for 19,000 Congressional donors.
• “Batch” searches that included current and former federal government officials, journalists, and political commentators.
• Searches for people who came to the FBI to perform repairs.
• Searches for victims who came to the FBI to report crimes.
• Searches for business, religious, and community leaders who applied to participate in the FBI’s “Citizens Academy.”
• Searches for college students participating in a “Collegiate Academy.”
• Searches for family members and colleagues.
• Searches for police officer candidates.
• Searches for an individual employed by a defense attorney.
• Searches for a wrongly accused American academic.
• Searches based on a witness’s report that two men “of Middle Eastern descent” were loading cleaning supplies into a truck.
• Searches for a local political party.
• “Batch” searches for 1600 Americans “who had flown through an airport during a particular date range and were either traveling to or returning from a foreign country”
• 2,000 searches for “the names and dates of birth of individuals who were registered competitors in an athletic event.”

Rep. Zoe Lofgren (D-CA), cofounder of the bipartisan Fourth Amendment Caucus, cheered the Protect Liberty Act and said that the Intelligence Committee bill would only expand 702 surveillance authority:

The Judiciary Committee successfully and overwhelmingly passed the Protect Liberty and End Warrantless Surveillance Act, largely inspired by the bicameral Government Surveillance Reform Act, by a bipartisan vote. The ever-growing growing support for surveillance reform by Members of Congress is promising, but we cannot be complacent.

The Intelligence Committee’s ‘FISA Reform and Reauthorization Act’ may have the word reform in its name, but the bill’s text proves otherwise. As legal experts point out, Section 504 of the bill would actually expand the government’s 702 authority by widening the definition of service providers. That is counter to Congress’ original intent, counter to Members of Congress’ expressed desires now, and unquestionably counter to the Fourth Amendment.

Additionally, hidden in the released NDAA is a seemingly-innocuous ‘short-term’ reauthorization of Section 702 of FISA until April 19, 2024. However, ‘short-term’ reauthorization masks a de facto 16-month extension, raising serious concerns about warrantless surveillance and Congressional intent.

Congress must not greenlight another major surveillance reauthorization without enacting surveillance reform measures that curb abuses and protect Americans’ civil liberties. That includes through the overreaching FRRA or the so-called short-term extension in the NDAA. They both extend or expand programs that law enforcement and intelligence agencies admit bypass the Fourth Amendment. [Emphasis added]

Biggs wrote, “The Intel Community wants to expand the FISA 702 spying authority. This means your Fourth Amendment privacy rights will continue to be violated. The Protect Liberty Act protects your privacy rights.”

Sean Moran is a policy reporter for Breitbart News. Follow him on Twitter @SeanMoran3.