Senators John Cornyn (R-TX) and Ted Cruz (R-TX) agreed in passing a bill that reauthorizes parts of the Foreign Intelligence Service Act (FISA) but differed on several amendments to the bill that would have provided greater privacy protections than currently afforded under federal law.
The debate on the amendments is ultimately a matter of balancing the priorities of privacy rights and national security.
Of the three amendments, one to gain notable attention was proposed by Sens. Ron Wyden (D-OR) and Steve Daines (R-MT) and would have explicitly required a warrant for federal agents seeking to obtain internet browsing or search history.
Under the status quo, some confusion in the language of the law gives discretion to the Foreign Intelligence Service Court (FISC) — which operates with a great deal of confidentiality due to national security concerns — to potentially interpret the law in a way that allows the government to compel telecommunications to hand over browsing history.
The Wyden-Daines amendment sought to clarify the language so that the court must require a warrant to obtain that information.
While Cruz voted in favor of the amendment, Cornyn opposed it. The measure needed 60 votes to pass, but only received 59, while 37 senators voted against it and four did not vote.
Another amendment offered by Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT) aimed to expand the role of an amicus curiae in the FISA Court, whose role is to advocate on behalf of privacy and civil liberties.
Reportedly, the authority for such representatives has been used in a limited number of cases since it was authorized by Congress in 2015.
Republicans have pointed to the need for greater privacy protections in FISA especially as it relates to alleged political abuse.
“During the 2016 presidential election, corrupt bureaucrats at the [Department of Justice] and [Federal Bureau of Investigation] engaged in grotesque abuses of power within the FISA process,” said Cruz in a statement to The Texan.
“We know that these partisan bureaucrats fabricated evidence and misled FISA courts to obtain warrants that were used to spy on then-candidate Donald Trump’s presidential campaign,” he continued. “That’s why I’m proud to have cosponsored the bipartisan Lee amendment. It protects against future abuses by strengthening Congressional and third-party oversight of the FISA process, and by requiring the Department of Justice to adopt accuracy procedures for all FISA applications.”
The Lee-Leahy amendment was the only one to pass, in a 77-19 vote. While Cruz voted in favor of the amendment, Cornyn opposed it.
Sen. Rand Paul (R-KY) introduced the third amendment, which would have even more broadly protected privacy by requiring the government to obtain “a warrant from a traditional federal court to surveil an American,” while still allowing the FISC to order surveillance of “non-Americans and our enemies.”
Paul’s amendment was rejected by the Senate in an 85-11 vote. Once again, Cruz supported the amendment while Cornyn opposed it.
“These are tools that are used by law enforcement on a daily basis for domestic criminal cases, and we’re going to deny those tools through our counterintelligence officials? It makes no sense whatsoever,” said Cornyn during a speech on the Senate floor. “Our counterintelligence and counterterrorism experts rely on these authorities to keep us safe, and it’s time we return this critical tool to their toolbox.”
The reauthorization bill as a whole with the approved amendment passed the Senate in an 80-16 vote on Thursday. Cruz and Cornyn both voted in favor of it.
Because of the change in the bill, it must return to the House of Representatives before it can be sent to the president for approval.
Although it does not contain as many expansions of privacy rights as some advocates have called for, the new reauthorization of FISA will — if passed by the House in its new form — still create more protections than were previously in place.
“Though much more work still needs to be done to reform FISA and protect Americans from abuses of power, the inclusion of our amendment in the USA FREEDOM Reauthorization Act is a strong step in the right direction, as it continues to protect Americans’ civil liberties and ensures we maintain the tools that are needed to target violent terrorists and prevent acts of terror,” said Cruz.
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.