March 20, 2020 2:52PM

Those “Must Have” Expiring FISA Authorities? They Expired (Sort Of)

With COVID-19 coverage dominating the news cycle, it’s easy to forget that it was only on Monday of this week that the Senate–after a rancorous debate (in private and public) passed a 77‐​day extension of three Foreign Intelligence Surveillance Act (FISA) authorities. One of those authorities–the so‐​called “lone wolf” provision–has never even been used, and another–the PATRIOT Act Section 215 “business records” authority–had its infamous and ineffectual telephone metadata provision formally killed by NSA last year.

As for the “roving wiretap” feature expiration, existing emergency warrantless authorities under FISA (seven days worth of time to get a warrant) will allow the feds to keep tabs on actual bad actors without missing a beat. Or, as Senate Intelligence Committee Chairman Richard Burr (R-NC) disclosed during the debate, NSA can just use the old, reliable (and completely statutorily unregulated) Executive Order 12333 to conduct the very same surveillance.

As of today (March 20) the FISA extension was, according to the Con​gress​.gov website, still being “held at the desk” (legislative lingo for “nothing further has happened since the House got the bill from the Senate”) with no House floor action on anything scheduled until March 23.

Burr’s startling admission on the Senate floor quite naturally begs the question: If NSA can conduct the same kind of spying under an executive order, why the hair‐​on‐​fire rhetoric about the need to renew these expiring FISA authorities?

If only we had dedicated Congressional committees whose job it is to investigate such things.…