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House Intel’s plans for controversial surveillance program run into privacy hawk backlash

The House Intelligence Committee is quietly circulating details about how to reform a controversial surveillance program — and quickly running into backlash from privacy hawks.

The talking points from the panel — a copy of which were obtained by POLITICO — provide previously unreported details on what a forthcoming bill to reauthorize and reform Section 702 will look like. The authority, which expires at the end of the year, is meant to target non-U.S. residents abroad but has come under fire because of its ability to sweep in Americans’ communications.

In a notable shift for Intelligence Committee members, who are generally more closely aligned with the community they oversee, the panel will require a warrant for a subset of searches for Americans’ information swept in under 702. The panel’s bill would require a warrant for “evidence of a crime” searches, which are not related to foreign intelligence. The administration has signaled privately and publicly for months that it is opposed to any warrant requirement, arguing that it would undermine the effectiveness of the program.

The Intelligence Committee’s proposal isn’t yet finalized. But the talking point details are far narrower than those in a bipartisan, bicameral bill privacy hawks rolled out last week that would require a warrant for any U.S. person searches. The scope of a warrant requirement is expected to be the most contentious issue in the upcoming debate, and Republicans are predicting it will need to be hashed out on the House floor.

Privacy advocates quickly warned that limiting the warrant requirement to just “evidence of a crime” searches would exempt the bulk of searches for Americans’ information outside of the new requirement.

“The vast majority of 702 abuses we have seen were ostensibly for foreign intelligence purposes, which means not only does HPSCI’s proposed bill fail to establish meaningful new privacy protections for Americans, it mostly fails to even address the ongoing and already documented misuse of this powerful spying law,” said James Czerniawski, a senior policy analyst for Americans for Prosperity.

In addition to the warrant requirement, the forthcoming House Intel bill would require “independent audits” of all FBI queries for Americans’ information. The document, however, doesn’t provide details on who would complete the audit, ties FBI compensation to query compliance and dramatically reduces the number of FBI personnel who are able to search 702-collected data for Americans’ information.

The bill also includes broader reforms to the Foreign Intelligence Surveillance Act, the larger surveillance law 702 is housed under, and an associated surveillance court.

But privacy advocates are warning that it could also expand 702. The bill, according to the circulated talking points, would allow foreigners applying for visas, immigration or asylum to be searched under 702. That comes after the intelligence community disclosed earlier this year that the National Security Agency has been using the authority for vetting foreigners who are being processed for travel to the United States or benefits under immigration laws.

It would also boost the intelligence community’s ability to use the authority to track fentanyl and drug cartels. An executive branch advisory board recommend earlier this year specifically creating a counternarcotics certification to “allow the intelligence community to collect more intelligence information about fentanyl threats under Section 702 and to become more effective in supporting the government in its fight against fentanyl.”

“This is a shameful proposal that does more to expand warrantless surveillance than rein it in,” said Sean Vitka, policy director at Demand Progress, accusing the committee of being “more interested in hiding the ball from the rest of Congress than meaningfully protecting Americans’ privacy.”

The bill leaves out broader reforms pushed for by privacy advocates on and off Capitol Hill, previewing another point of contention in the end-of-year debate.

It doesn’t, for example, include legislation that would prevent data brokers from selling consumer data to federal law enforcement. It also doesn’t move a Reagan-era executive order on surveillance under the guardrails of the Foreign Intelligence Surveillance Act.

A bipartisan bill unveiled last week includes both of those provisions. Rep. Andy Biggs (R-Ariz.), who co-sponsored that bill, told POLITICO he expects both to also be incorporated into a forthcoming Judiciary Committee bill.

Biggs is part of a joint House Intelligence and Judiciary committee working group that was tasked with trying to come up with a path forward on the surveillance authority.

The two panels are expected to now move forward with their own bills — though there will be areas of overlap for FBI and FISA court reforms.

“The one thing that everybody agrees on is not only do you have to take care of 702, you have to take care of the broader stuff,” Biggs said.

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