A variety of issues requiring attention have understandably been subordinated on both the congressional calendar and in the national conscience in the wake of the COVID-19 pandemic. One of those issues is legislative consideration of three now-expired surveillance authorities and other matters relating to the Foreign Intelligence Surveillance Act (FISA).
A Brief Summary of the Current Legislative Status of FISA “Reform”
When FISA was last addressed in the U.S. Capitol on March 16, 2020, the Senate had passed ameasure (S. 3501) authorizing a 77-day extension of three expiring FISA provisions: the “lone wolf” surveillance authority, the roving wiretap surveillance authority, and the business records authority that includes the ability to acquire call detail records (CDRs). The Senate bill, passed a day after these FISA authorities had expired, retroactively sought to resuscitate the expired provisions and was intended as a stopgap until more comprehensive FISA legislation could be considered in the Senate. The House, which had passed its own comprehensive bill on FISA
“reform” (H.R. 6172̶—the “USA FREEDOM Reauthorization Act of 2020”) just days earlier, was in recess at the time the Senate passed S. 3501 and never took action on it. Consequently, no FISA “reform” legislation has passed both houses of Congress, and the three FISA authorities scheduled to sunset on March 15, 2020 expired.
The comprehensive legislation passed by the House (H.R. 6172) on March 10, 2020, contained a number of changes to FISA, some of which can be directly traced to the report of the Justice Department’s Inspector General (DoJ IG) Michael Horowitz that was publicly released in redacted form on December 9, 2019.