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—both bothered equally 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.