Congress passed a temporary extension of a powerful government surveillance program this past week, and now long-discussed plans among lawmakers to make fixes to it before the end of the year could be stalled for months or longer.
Congress voted to reauthorize the program, known as Section 702 of the Foreign Intelligence Surveillance Act, without any changes through mid-April 2024.
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The program, which was set to expire at the end of this month, allows the intelligence community to surveil foreigners without a warrant for national security purposes, but U.S. citizens who have been communicating with those overseas can get swept up in the collected information.
The controversial short-term reauthorization occurred after House Speaker Mike Johnson (R-LA), in a display of indecision, went back and forth over a matter of days about whether to tack it onto a must-pass annual defense bill.
Johnson’s ultimate choice to include the reauthorization as part of the National Defense Authorization Act — leading to its ultimate passage on Thursday — prompted outrage and disappointment from privacy hawks, who have long said Congress must reform Section 702 to address the FBI’s rampant misuse of it.
The intelligence community and Congress tends to agree that Section 702 is vital to national security and that it routinely helps to prevent terrorist attacks, cyberattacks, and other threats from foreign adversaries.
The FBI was, however, found in recent years to have inappropriately queried the vast database of Section 702-derived foreign intelligence for information about U.S. citizens hundreds of thousands of times, garnering private information about U.S. campaign donors, George Floyd protesters, and Jan. 6 riot suspects. The bureau is adamant that internal reforms it began making in the summer of 2021 have addressed the issue, and a FISA court opinion recently agreed that the FBI’s noncompliance had drastically decreased because of the reforms.
Still, those seeking legislative reforms have called on a bipartisan basis for codifying the FBI’s internal changes into law, limiting those who can access the Section 702 database, and strengthening the repercussions for misuse. The most dramatic and most controversial proposal, however, is the requirement that officials obtain a probable cause warrant before seeking U.S. citizens’ information. The Department of Justice and FBI are firmly against that change and say it would cripple the program because speedy access to information is essential.
Johnson said in a letter to his colleagues that the four-month extension, which lasts through April 19, would buy “necessary time to facilitate the reform process.”
Rep. Thomas Massie (R-KY), who disapproved of the short-term reauthorization and voted against the NDAA, spoke in a phone interview with the Washington Examiner about what could come next for Section 702 over the next four months.
“If there is still an appetite to address it when it does expire in April, I think the speaker has a problem with trying to pass it,” Massie said. “The only reason that clean extension was able to pass this week is that it was attached to a piece of must-pass legislation.”
The House Judiciary and Intelligence Committees have competing bills, and while they have significant overlap, their key differences, including on warrants, have divided the House on which one to proceed with. Judiciary’s bill has stringent warrant requirements built into it, whereas Intelligence’s bill does not.
Massie, a Judiciary Committee member who also sits on the Rules Committee, which vets bills before they go to the House floor, said he believes the Judiciary has more jurisdiction over Section 702 reforms.
“We think it should start with the Judiciary, and the Intel Committee can offer amendments. Anybody could offer amendments,” Massie said. “Then, in the Rules Committee, we would allow any number of amendments to address the concerns that people might have.”
Asked what Massie personally wants to see happen, however, he responded, “Yeah, get in a time machine and go back and redo last week.”
The Senate Intelligence Committee has a bill that is similar to its counterpart’s bill in the House, so any three of the committee bills or some combined form of them could prevail and become the final bill. The House Judiciary Committee bill would reauthorize Section 702 for three years, the House Intelligence Committee for eight years, and the Senate Intelligence Committee for 12 years.
If Congress fails to vote on a reform bill or pass another clean extension, Section 702 will lapse in April 2024.
Some, including Massie and others, warn the government could actually still use it for another year after that, even if the statute expires because of annual certificates the government has through the FISA courts.
The current certificates expire in April, the same month the reauthorized statute now runs out. The administration can renew its certificates while the statute is active.
“The clean extension of Section 702 of FISA into April of 2024 is very concerning and something that we need to monitor closely,” James Czerniawski, a senior policy analyst for Americans for Prosperity, said.
Czerniawski, who has been urging reforms, said, “It presents an opportunity for the IC to get a new one-year certification from [the FISA court], making the FISA authorities not a four-month extension, but a 16-month one.”
Theoretically, that would allow Congress to avoid passing reforms until 2025.
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But the DOJ disputed that notion in a letter to the Senate this month, saying, “Any expiration of Section 702, no matter how short, would inject tremendous uncertainty and risk, endangering the IC’s ability to gain valuable intelligence.”
“If Title VII of FISA is allowed to lapse, the government’s ability to acquire information, even under existing Section 702 directives, may be challenged. This is exactly what happened in 2008 when Congress allowed a lapse in Section 702’s predecessor authorities, resulting in the loss of intelligence information,” the department said.
