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A controversial US wiretap program days from expiration cleared a major hurdle on its way to being reauthorized.
After months of delays, false starts, and interventions by lawmakers working to preserve and expand the US intelligence community’s spy powers, the House of Representatives voted on Friday to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA) for two years.
Legislation extending the program—controversial for being abused by the government—passed in the House in a 273–147 vote. The Senate has yet to pass its own bill.
Section 702 permits the US government to wiretap communications between Americans and foreigners overseas. Hundreds of millions of calls, texts, and emails are intercepted by government spies each with the “compelled assistance” of US communications providers.
The government may strictly target foreigners believed to possess “foreign intelligence information,” but it also eavesdrops on the conversations of an untold number of Americans each year. (The government claims it is impossible to determine how many Americans get swept up by the program.) The government argues that Americans are not themselves being targeted and thus the wiretaps are legal. Nevertheless, their calls, texts, and emails may be stored by the government for years, and can later be accessed by law enforcement without a judge’s permission.
The House bill also dramatically expands the statutory definition for communication service providers, something FISA experts, including Marc Zwillinger—one of the few people to advise the Foreign Intelligence Surveillance Court (FISC)—have publicly warned against.
“Anti-reformers not only are refusing common-sense reforms to FISA, they’re pushing for a major expansion of warrantless spying on Americans,” US senator Ron Wyden tells WIRED. “Their amendment would force your cable guy to be a government spy and assist in monitoring Americans’ communications without a warrant.”
The FBI’s track record of abusing the program kicked off a rare détente last fall between progressive Democrats and pro-Trump Republicans—equally bothered by the FBI’s targeting of activists, journalists, and a sitting member of Congress. But in a major victory for the Biden administration, House members voted down an amendment earlier in the day that would’ve imposed new warrant requirements on federal agencies accessing Americans’ 702 data.
“Many members who tanked this vote have long histories of voting for this specific privacy protection,” says Sean Vitka, policy director at the civil-liberties-focused nonprofit Demand Progress, “including former speaker Pelosi, Representative Lieu, and Representative Neguse.”
The warrant amendment was passed earlier this year by the House Judiciary Committee, whose long-held jurisdiction over FISA has been challenged by friends of the intelligence community. Analysis by the Brennan Center this week found that 80 percent of the base text of the FISA reauthorization bill had been authored by intelligence committee members.
“Three million Americans' data was searched in this database of information,” says Representative Jim Jordan, chair of the House Judiciary Committee. “The FBI wasn't even following its own rules when they conducted those searches. That's why we need a warrant.”
Representative Mike Turner, who chairs the House Intelligence Committee, campaigned alongside top spy agency officials for months to defeat the warrant amendment, arguing they’d cost the bureau precious time and impede national security investigations. The communications are legally collected and already in the government's possession, Turner argued; no further approval should be required to inspect them.
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“The United States is at its greatest risk of terrorism in more than a decade following the horrific October 7th attack on Israel, and the [intelligence community] must focus attention and resources on that threat while continuing to stay ahead of China,” Turner and Jim Himes, the top Democrat on the House Intelligence Committee, said in a joint statement after the vote, adding that 702 remains one of the country's most effective national security tools.
“It allows the United States to counter our adversaries, like China and Russia, thwart potential terrorist attacks from ISIS, Al-Qaeda, Hamas, and Hezbollah, and disrupt international drug cartels who are looking to smuggle fentanyl into our nation,” they said.
The FBI introduced a slate of new internal policies to clamp down on the abuse itself, changes that the Biden administration argues are sufficient to ward off future abuse. Knowingly searching the database for information about Americans requires analysts—who must now submit to annual training sessions—to seek approval from higher up the chain of command than before. Running batch queries targeting Americans’ communications now requires a consultation with a government attorney.
While opposing the search warrants, Turner backed a ban on searches of 702 data for criminal cases that lack any foreign element. While that amendment has been welcomed by members on both sides of the issue, privacy hawks say the ban is not quite the major reform that Turner has proclaimed. Data on the program made public by the FISC suggests the ban will in reality affect less than a handful of cases each year.
Critics of the program say that relying on the FBI to internally police against its own constitutional violations is a tactic that has failed in the past, and that the bureau can no longer be trusted not to spy on Americans without cause.
“Section 702 has been abused under presidents from both political parties, and it has been used to unlawfully surveil the communications of Americans across the political spectrum,” says Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union. “The Senate must add a warrant requirement and rein in this out-of-control government spying.”
Judiciary members had also sought to include an amendment banning the government from buying Americans' geolocation data from private companies. At Turner’s behest, House speaker Mike Johnson killed the amendment earlier in the week.
The US Supreme Court has recognized geolocation data as protected from seizure by the “probable cause” standard. Rather than begin applying for warrants, the government has circumvented the ruling in many cases, buying up GPS data from companies that consumers largely believe are tracking them purely for advertising purposes.
“They’re buying data. That’s what they’re doing,” says Warren Davidson, a Republican congressperson from Ohio. “They’re structuring markets to collect the data and they’re circumventing the Fourth Amendment. We need to turn that off.”
