The House on Friday passed a two-year reauthorization of the expired warrantless surveillance law known as Section 702, reversing course after the bill collapsed days earlier when former Gen. President Donald J. Trump called on his allies to “kill” it.
But disappointing privacy advocates, the House narrowly rejected a long-standing proposal to seek search warrants for Americans’ text messages scanned by the program.
Here’s a closer look.
What is Section 702?
That’s the law that allows the government to collect — on domestic soil and without a warrant — the communications of foreigners targeted abroad, including when those people interact with Americans.
Under that law, the National Security Agency could require email services like Google to turn over copies of all messages in any foreign user’s account and network operators like AT&T to intercept and provide provide copies of every phone call, text message and internet communication to or from a foreign target.
According to national security officials, Section 702 collection plays an important role in foreign intelligence gathering and counterterrorism.
Why was Section 702 created?
After the attacks of September 11, 2001, President George W. Bush secretly ordered a warrantless eavesdropping program codenamed Stellarwind. It violates the Foreign Intelligence Surveillance Act of 1978, or FISA, which typically requires a judge’s authorization for land-based national security surveillance activities.
The main reason is that when Congress enacted FISA, lawmakers relied on geography to request warrants allowing domestic wiretapping while keeping foreign espionage unchecked. But technological advances – the internet and fiber optic lines – have made foreigners’ messages available on domestic networks, where FISA warrants apply.
Stellarwind is based on the controversial assertion of executive power. Congress later legalized a form of that program by creating an exception, now known as Section 702, to the warrant rule in FISA.
Why is Section 702 controversial?
Privacy advocates have criticized Section 702 because it sometimes allows the government to collect Americans’ text messages without a court order. Although the law prohibits the use of Section 702 to target Americans, when a foreign target communicates with an American, the government unintentionally collects that American’s messages to and from the target. their spending.
Analysts at several agencies, including the FBI, can search message archives using Americans’ identifying information — like names, Social Security numbers, passport numbers, phone and email address – as search terms. Critics call such queries a “backdoor search loophole” to the Fourth Amendment and have long wanted Congress to require the government to seek permission before searching private communications of Americans.
Repeated revelations in recent years that FBI analysts violated standards when they sought information on Americans have only increased tensions. That includes the wrong analysts requested information about Black Lives Matter protesters and those suspected of participating in the attack on the Capitol on January 6, 2021. The FBI has since tightened restrictions to reduce the risk of such abuse.
What happens if Section 702 lapses?
Even if this law expires next Friday, The program can continue to operate until April 2025 because last week the FISA court has made a request to the government for another year. Under the law, surveillance can continue as long as there is a court order in effect authorizing it, even if the underlying statute expires.
Even so, the intelligence community is still calling on Congress to reauthorize the program before it falls into legal limbo, raising the possibility that vendors could impede continued cooperation and leading to gaps in intelligence gathering. It is also unlikely for a FISA court to order new companies to enter the program if the underlying statute has expired.
Why does Trump want to kill it?
For politically incoherent legal and policy reasons, as the House prepared to pass the legislation this week, Mr. Trump weighed in, urging supporters to “KILL FISA, IT IS USED ILLEGAL AGAINST ME AND MANY OTHERS. THEY WATCH MY CAMPAIGN!!!”
Mr. Trump’s outburst is part of his years-long effort to stoke discontent about national security agencies. His discontent stems from the inspector general’s finding that the FBI botched the FISA warrant application targeting a former campaign consultant as part of an investigation into ties between his 2016 campaign and Russia. (A subsequent report was found systemic negligence in unrelated applications.)
But Mr. Trump is confusing which part of FISA he is unhappy with with the Russia investigation. (The section in question deals with injunctions and does not expire; in fact, it is not Section 702.) However, after his plea, 19 far-right Republicans blocked the House from passing passed the bill on Wednesday – dealing a blow to national security officials who say Section 702 is a vital tool for protecting the country.
How did Speaker Johnson revive the bill?
Speaker Mike Johnson cut the extension from five years to two, allowing far-right Republicans to win. Among other things, if Mr. Trump wins the 2024 election, he will take office when the next law is enacted. All 19 Republicans who blocked consideration of the bill on Wednesday voted to take it up on Friday.
What happened to the security proposal?
An amendment to add it to the bill failed in a dramatic 212 to 212 vote — under House rules, a tie means a measure has failed.
National security officials from the Biden administration lobbied hard for Congress not to pass the amendment. They argued that it would cripple the program because they often use it before there is enough evidence to meet the standard of probable cause for an arrest warrant, such as in initial investigations when they are trying to learn more about a discovered phone number or email account. contact with a suspected foreign agent or terrorist.
The close vote deeply disappointed privacy advocates, who instead viewed the warrant requirement as necessary to uphold constitutional principles. They are closer to success this cycle than they have been in previous cycles.
What other changes will the bill have?
The bill would codify as a matter of law changes the FBI has made to reduce the risk of inaccurate inquiries, add new reporting requirements, and sharply reduce the number of FBI officials with authority access the raw information archive.
The House on Friday passed several amendments that would make other significant changes, including authorizing the use of the Section 702 program to gather intelligence on foreign drug trafficking organizations and screening potential foreign visitors to the United States.
The House also passed a measure — whose effects are unclear but which the Justice Department has requested and privacy advocates have warned — to expand the types of companies that have access Access to foreign communications may be required to participate in the program. The technical details of why the government wants that change have been classified.
What happens next?
The House must officially transmit the bill to the Senate. There will certainly be further debate in the Senate, where privacy-minded lawmakers like Sen. Ron Wyden, Democrat of Oregon, will likely try again to bring set new limits to the law.
