Privacy rights advocates this week are sounding the alarm about a bipartisan congressional effort to imminently force through an extension of warrantless government surveillance powers despite public outrage over a well-documented history of misuse.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire at the end of the year unless it is reauthorized by Congress. The law only permits warrantless surveillance targeting foreigners located outside the United States, but Americans' data is also collected, and court documents have exposed "chilling" abuse, especially at the Federal Bureau of Investigation (FBI).
While the FBI has implemented some reforms, for years—but particularly in the months leading up to the looming expiration—campaigners have pressured lawmakers to refuse to reauthorize Section 702 or to only do so with serious changes.
"Congressional leaders should not betray the broad, bipartisan support for surveillance reform by jamming Section 702 into the NDAA."
"To extend warrantless surveillance is to extend the racial profiling of everyday Americans. It's for this reason that we can't tolerate the reauthorization of FISA Section 702—and neither should Congress," AAPI Victory Alliance declared Thursday.
AAPI Victory Alliance is among 92 civil rights and racial justice groups that wrote to federal lawmakers late last month arguing that "including in must-pass legislation any extension would sell out the communities that have been most often wrongfully targeted by these agencies and warrantless spying powers generally."
The Biden administration has been pushing for a Section 702 extension without sweeping reforms. FBI Director Christopher Wray claimed in congressional testimony on Tuesday that "loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risks. For the FBI in particular, either outcome could mean substantially impairing, or in some cases entirely eliminating, our ability to find and disrupt many of the most serious security threats."
On Wednesday evening, U.S. House Armed Services Committee Chair Mike Rogers (R-Ala.) filed the conference report of the National Defense Authorization Act (NDAA) for Fiscal Year 2024. The bipartisan compromise includes a temporary extension, which the Electronic Privacy Information Center called "a shocking attempt to entrench a controversial and sweeping surveillance authority that Congress is actively working to reform."
Sean Vitka, policy director of Demand Progress, agreed that "congressional leaders should not betray the broad, bipartisan support for surveillance reform by jamming Section 702 into the NDAA. It would perpetuate staggering abuses of Americans' privacy, including wrongfully spying on protestors, politicians, journalists, and thousands of others."
The NDAA report came just hours after the House Judiciary Committee voted 35-2 to advance the Protect Liberty and End Warrantless Surveillance Act (H.R. 6570)—which Jake Laperruque, deputy director of the Center for Democracy & Technology's Security and Surveillance Project, called "the strongest surveillance reform passed out of committee since the original FISA bill 45 years ago."
"It will end the pervasive abuse of U.S. person queries, which have been made against protesters, journalists, lawmakers, and campaign donors, among thousands of others," he said, praising the panel's broad bipartisan support for the bill. "At the same time, it is meticulously designed to retain the security value of FISA 702, such as quickly allowing queries with consent to protect victims. We urge the House to promptly bring this bill to the floor and pass it."
On Thursday, the House Permanent Select Committee on Intelligence passed the FISA Reform and Reauthorization Act, which features an eight-year extension—and, as Roll Callreported, "would require the FBI to get a probable cause warrant only before using a U.S. person term for the purpose of searching for evidence of a crime, a provision that privacy advocates argue only encompasses a small fraction of the searches."
House Speaker Mike Johnson (R-La.) wrote Thursday in a letter to colleagues that he plans to bring both panels' bills "to the floor under a special rule that provides members a fair opportunity to vote in favor of their preferred measure" next week.
Johnson said that Senate Majority Leader Chuck Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.) have committed to working "in good faith on a final reform bill that can be passed in both chambers," which the pair confirmed in a joint statement.
"To provide the necessary time to facilitate the reform process in a manner that will not conflict with our existing appropriations
deadlines and other conflicts, the NDAA conference agreement necessarily includes a short-term extension of the 702 authorities through April 19 of next year," the speaker added, as Schumer moved to set up an NDAA vote next week.
Elizabeth Goitein, senior director of the Brennan Center for Justice's Liberty & National Security Program, was among the rights advocates and lawmakers who highlighted that "it purports to be a 'short-term' reauthorization until April 19, 2024, but make no mistake: leaders are actually extending this abuse-ridden authority INTO APRIL 2025."
"It purports to be a 'short-term' reauthorization until April 19, 2024, but make no mistake: leaders are actually extending this abuse-ridden authority INTO APRIL 2025."
"They claim that Congress needs more time to consider reforms, but that's clearly untrue," Goitein explained on social media, citing the House Judiciary Committee bill. "But even if December 31 came and went with no reauthorization, the government would still be able to conduct surveillance into April 2024. That's because the FISA Court authorizes Section 702 surveillance for one-year periods and the law clearly states that the court's authorizations remain in effect until they expire, regardless of what happens with Section 702 itself."
"The court's April 2023 authorization will thus greenlight surveillance into April 2024," she said. "So why are congressional leaders doing this? Because that four-month extension, in practice, will be a *16-month extension.* Between now and April 19, the administration will go back to the FISA Court and get ANOTHER one-year authorization which means the [government] gets a total of 16 extra months to continue conducting warrantless backdoor searches for Americans' communications."
"How do we know this is what congressional leaders actually intend? Because if they wanted to extend Section 702 for four months WITHOUT creating a de facto 16-month extension, there's a very easy way to do that," she stressed. "They could simply include a provision stating that any FISA Court authorization issued during that four-month period would ALSO expire in April 2024. They're well aware of that option. And they appear to have rejected it."
