Patriot Act updates lurk for Congress

The upcoming expiration of a handful of key provisions in the Patriot Act at the end of the year could set up another high-profile battle in Congress over the size and scope of U.S. intelligence and law enforcement surveillance authorities.

In 2015, the Republican-controlled House and Senate extended large portions of the Patriot Act until 2019. One of the extended provisions, Section 215, allows the Foreign Intelligence Surveillance Court to order third parties to turn over devices, email accounts and other objects and records in terrorist and foreign intelligence probes.

The 2015 update, made in the wake of the Edward Snowden disclosures about the extent of U.S. capture of bulk communications data, curbed the collection by the National Security Agency of bulk metadata. That update is scheduled to sunset in December, and one tech-minded member on the House Judiciary committee told FCW he wants the new Democratic majority to take another look at potential reforms to the law.

"My hope is that with Section 215 we will have robust debates and consider various amendments to it and that we'll have a full and fair hearing," said Rep. Ted Lieu (D-Calif.), who is an attorney and one of a small number of lawmakers with a computer science degree.

The committee is still figuring out its legislative schedule, and no hearings on the matter have been planned.

In 2017 and 2018, Congress struggled to come to a consensus on whether and how to extend another controversial program, Section 702 of the Foreign Intelligence Surveillance Act, over similar Fourth amendment concerns. During that debate, privacy advocates expressed confidence that revelations about surveillance abuses from the 2013 Snowden disclosures and increased skepticism from the American public and Congress would lead to inevitable changes when the program came back up for renewal.

However, reformers were never able to coalesce behind a single bill, with House Judiciary proposing its own legislation and privacy hardliners in Congress, the American Civil Liberties Union and other privacy groups backing different bills sponsored by Lieu, Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Texas), Sen. Ron Wyden (D-Ore.) and others.

"I'm disappointed that when we had the battle last term that Congress, in my view, did not reform Section 702 as much as I would have liked," Lieu said.

In the end, the law expired and many moderate members who expressed a desire to reform -- not end -- Section 702 wound up voting in favor of a House Intelligence Committee bill that extend the program without any significant reforms. A similar fate could be in store for Section 215.

"Some would very much like to chop back the authority at least to its pre-Patriot Act levels, and others would just as much like to restore it to its pre-[2015] levels," University of Texas law professor Bobby Chesney wrote in Lawfare. "More likely, we'll see either an extension of the current provision, or perhaps some (comparatively minor) tweaks."

One development that could push members to rein in the program: a 2018 disclosure by the National Security Agency that it had to delete hundreds of millions of phone and text records after finding out an undisclosed amount were collected in violation of the 2015 USA Freedom Act.

A June statement cited "technical irregularities" for the oversight but it's still not clear whether

the overcollection was the fault of the agency or due to oversharing by telecommunications companies.

Lieu said he is hopeful that the Democratic takeover of the House will lead to better cooperation between Judiciary and the House Select Permanent Committee on Intelligence, which also has jurisdictional over surveillance law.

"I think with the change in Congress to Democratic control we'll have a much better relationship with House Intel," said Lieu. "Adam Schiff is an amazing chair…he actually reads documents and understands facts so I think it will be a different relationship and much better in this term."