No FISA fix in annual intelligence policy bill approved by House panel

The House Intelligence Committee has approved its annual policy bill, which does not curtail the reach of a recently passed surveillance law, setting up a clash with the Senate.

The panel on Tuesday unanimously approved its fiscal year 2025 Intelligence Authorization Act (IAA). The mostly classified legislation greenlights billions in spending by U.S. intelligence agencies and provides policy guardrails for the clandestine community.

Recorded Future News first reported last month that the Senate version of the legislation would amend a bill that reauthorized Section 702 of the Foreign Intelligence Surveillance Act (FISA) and expanded the definition of “electronic communication service providers” (ECSP) that can be compelled to furnish information to the government.

The statute allows the National Security Agency to hoover up the content of calls, emails and other electronic information of overseas targets from U.S. technology providers. It also sweeps up the personal data of an unknown number of Americans.

Privacy hawks said the service provider language was too vague and would give U.S. intelligence agencies more power to force ordinary Americans to assist in government surveillance. 

The Biden administration refuted those claims and promised to only use the new standard “to cover the type of service provider at issue” in litigation before the FISA court from 2022. Though the exact type is classified, it is widely believed to mean individual data centers for cloud computing.

The Senate bill’s technical fix would enshrine that vow into law.

Last week, John Wiegmann, the administration’s nominee to be the next top lawyer for the Office of the Director of National Intelligence, backed the change.

“We've done as much as possible, including working with the chairman, to make clear that it was intended to be a very narrow technical fix,” he told the Senate Intelligence Committee during his confirmation hearing.  

“And my understanding is that in the draft intel authorization act, we're going to go another step farther, to try to link that definition to that court decision in a way that will try to provide as much as we can while protecting the sources and methods … that we need to protect.”

With similar language left out of the House bill, lawmakers will have to negotiate a solution in conference.

House Intelligence Committee Chair Mike Turner (R-OH) declined to comment.

Rep. Jim Himes (CT), the panel’s top Democrat, said the issue “has not been coordinated between the Senate and the House, as far as I know.”

“It was never something we were asked to opine on,” Himes, who hammered out a compromise on the original ECSP amendment with Turner, told Recorded Future News.

He noted Senate Intelligence Chair Mark Warner (D-VA) pledged in the final hours before Section 702’s expiration that his panel would tackle the issue when it took up its authorization bill and “had to follow up.”

Himes said he had not reviewed the Senate’s bill but that the proposed change “would be totally fine with me.”

“I always believed that the language was overbroad in the initial amendment, which was why I altered the language, and that didn't sufficiently satisfy people,” he said. “I'm not opposed to Mark’s efforts. I think it's created a lot of consternation where it didn't need to exist but it sort of never came up in our IAA.”

This article was updated at 11:40 a.m. EST with comments from Rep. Jim Himes (D-CT).