House votes to expand electronic spying powers

Republican leaders attack Democrats who voted against the measure, accusing them of supporting privacy rights for terrorists.

Anne Broache
Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
3 min read
Amid serious misgivings from opponents, the U.S. House of Representatives has approved a bill that would expand the government's electronic spying powers in terrorism investigations.

The Electronic Surveillance Modernization Act passed late Thursday by a 232 to 191 vote, with 177 Democrats voting against it and 18 siding with the Republican majority on the vote. As well as being challenged by most Democrats, the bill had drawn opposition from a handful of Republicans and civil liberties groups.

"House Republicans don't support privacy for terrorists and won't allow them the ability to harm innocent Americans," House Speaker Dennis Hastert (R-Ill.) said in a statement. "Congress has provided a way for our intelligence programs to legally monitor and track terrorist phone calls and communications so we can prevent further terrorist attacks."

Democratic Leader Nancy Pelosi of California countered: "Rather than enshrine in law powers the president has claimed he already holds, we should continue to have judicial review of the president's domestic surveillance program...We do not need to pass this diminishment of our privacy tonight."

The measure still must clear the Senate before becoming law. A Republican leadership aide said her side's companion bill could be called up for a vote before the legislators adjourn this weekend for campaigning ahead of the Nov. 7 election.

Democrats opposed to the measure, however, are expected to block Majority Leader Bill Frist's likely attempt to obtain swift approval by unanimous consent, the aide said.

Under the House's bill, the president would have the authority to authorize electronic surveillance without a court order for up to one year, if it is directed at the communications of foreign powers or their agents. The attorney general would have to certify that the "significant purpose" of the spying is to gather foreign intelligence information, but would not be required to specify "the specific facilities, places, premises, or property" where such an operation would occur, according to the bill.

The president would also have the power to sign off on warrantless eavesdropping for up to 90 days in three instances: after a terrorist attack on the U.S.; after an armed attack on the U.S.; or after submitting in writing that an "imminent threat of attack likely to cause death, serious injury, or substantial economic damage to the United States" exists.

Critics argue that those provisions are overly vague, because the bill never defines what those attacks mean.

However, supporters claim the bill is not without checks on the executive branch's powers. The attorney general would have to make semiannual reports to congressional intelligence committees on any warrantless surveillance. That official would also have to report periodically on what investigators are doing "to minimize the acquisition, retention, and dissemination of nonpublicly available information concerning United States persons" and to list and describe any "significant" violations of that policy.

Opponents, including the Electronic Frontier Foundation and the Center for Democracy and Technology, said in a letter this week (click for PDF) that the version passed by the House contains the worst elements of all the surveillance bills Congress has been considering this year.

Some of the provisions--such as the 90-day windows for warrantless surveillance before and after attacks--are unnecessary, they said. That's because federal wiretapping law already allows the president to begin conducting surveillance before seeking a secret court order for a limited time during emergency situations, they noted.

They also attacked a section that would effectively quash all legal challenges occurring between Sept. 11, 2001, and a point 60 days after the bill's enactment, if those challenges relate to "any alleged communications intelligence program" aimed at staving off terrorist attacks. Some of the opposing groups have already sued the National Security Agency and telephone companies accused of violating the constitutional privacy rights of Americans by aiding the warrantless surveillance program.

"If this bill is adopted," Lisa Graves, ACLU Senior Counsel for Legislative Strategy, said in a statement, "Congress would be authorizing more warrantless surveillance of Americans than ever before."