United States lawmakers are receiving a flood of warnings from across civil society not to be bend to the efforts by some members of Congress to derail a highly sought debate over the future of a powerful but polarizing US surveillance program.
House and Senate party leaders are preparing to unveil legislation on Wednesday directing the spending priorities of the US military and its $831 billion budget next year. Rumors, meanwhile, have been circulating on Capitol Hill about plans reportedly hatched by House speaker Mike Johnson to amend the bill in an effort to extend Section 702, a sweeping surveillance program drawing fire from a large contingent of Democratic and Republican lawmakers favoring privacy reforms.
WIRED first reported on the rumors on Monday, citing senior congressional aides familiar with ongoing negotiations over the bill, the National Defense Authorization Act (NDAA), separate versions of which were passed by the House and Senate this summer.
More than 80 civil rights and grassroots organizations—including Asian Americans Advancing Justice | AAJC, Color of Change, Muslims for Just Futures, Stop AAPI Hate, and United We Dream—signed a statement this morning opposing “any efforts” to extend the 702 program using the NDAA. The statement, expected to hit the inboxes of all 535 members of Congress this afternoon, says that failure to reform contentious aspects of the program, such as federal agents’ ability to access Americans’ communications without a warrant, poses an “alarming threat to civil rights,” and that any attempt to use must-pass legislation to extend the program would “sell out the communities that have been most often wrongfully targeted by these agencies and warrantless spying powers generally.”
“As you’re aware, this extremely controversial warrantless surveillance authority is set to expire at the end of the year, but will continue to operate as it does currently until April, as government officials have recognized for many years,” the groups say.
Johnson and Senate majority leader Chuck Schumer did not respond to WIRED’s request for comment. Leadership of the House and Senate armed services committees likewise did not respond.
Section 702 of the Foreign Intelligence Surveillance Act authorizes the US government, namely, the US National Security Agency, to surveil the communications of foreign citizens believed to be overseas. Oftentimes, these communications—texts, calls, emails, and other web traffic—“incidentally” involve Americans, whom the government is forbidden from directly targeting. But certain methods of interception, those that tap directly into the internet’s backbone, may make it impossible to fully disentangle foreign communications from domestic ones.
Though a probable-cause warrant is usually required before US law enforcement can obtain the content of an American’s calls, the courts view Section 702 surveillance—accomplished with the compelled assistance of US telecoms—as a two-step process, applying constitutional safeguards to each step individually. The collection, or seizure, only “targets” foreigners and is thus legal. Once communications are in the government's possession, however, federal agents are free to query, or search, them under procedures approved by the Foreign Intelligence Surveillance Court, an 11-judge panel whose proceedings are classified and deliberated ex parte. These procedures are ostensibly designed to “minimize” the program’s impact on Americans' rights.
The “incidental,” or collateral, collection of Americans' communications is intensely controversial, due in part to procedures—namely those of the Federal Bureau of Investigation (FBI)—that allow federal agents to conduct warrantless, after-the-fact queries of Section 702 data for investigations of a purely domestic nature.
The conservative and libertarian nonprofit FreedomWorks, which has supported privacy reforms in an array of surveillance debates at the federal, state, and local levels, said Tuesday that it intends to issue a “key vote” against the NDAA in the event a Section 702 amendment is included in the bill. Key votes are a FreedomWorks scoring tool that track controversial votes by conservative lawmakers—effectively, a bad mark that may be used against them in future elections. The American Civil Liberties Union says likewise that it intends to score the vote using its own similar process, which tags progressives with votes the group deems at odds with the Bill of Rights.
“To use the NDAA to reauthorize a mass spying program that has been so flagrantly abused without going through the full legislative process and robust debate betrays the public’s trust,” says Kia Hamadanchy, senior policy counsel at the ACLU. Added FreedomWorks president Adam Brandon: “This is the time for robust debate over these issues, not maneuvers by congressional leadership to undermine Americans’ privacy. FISA reauthorization should not be in the NDAA—period.”
A single, uniform bill approved by both chambers is needed before the NDAA can be sent to the president for his signature. A conference of dozens of lawmakers, drawn in large part from the armed services committees, is expected to receive a copy of the bill on Wednesday—their first opportunity to review the consolidated text—and will have until the close of business to approve the language.
From there, the NDAA is subjected to different sets of rules for each chamber. In the Senate, it will either be ushered directly to the floor for a vote or may require three-fifths of the body to formally end debate on the NDAA. In the House, the bill may be subjected to a “rule” issued by the House Rules Committee, which is typically designed to promote the goals of party leaders, waiving points of order or limiting floor debate. The bill may also be considered “under suspension,” however, which is an expedited process that prohibits floor amendments and requires a two-thirds majority.
Senior Democratic and Republican sources say the House is expected to bypass the Rules Committee, meaning there will be no opportunity to strike down any amendments that could extend the 702 program—which is itself not typically included as part of the NDAA.
A senior Republican aide tells WIRED the odds of Johnson proceeding with a plan to extend the 702 program using the NDAA have grown slim over the past few days, as it’s become increasingly clear the speaker would face significant backlash from rank-and-file members of his own party, as well as more powerful figures such as Jim Jordan, the chairman of the House Judiciary Committee, and Matt Gaetz, one of a handful of lawmakers to whom Johnson effectively owes his new position.
A senior aide to Jordan tells WIRED that the chairman would not support extending the Section 702 program without significant reforms—in particular, a ban against the FBI accessing 702 data on Americans without a warrant.
The House and Senate intelligence committees on Tuesday introduced their own legislation to reauthorize the 702 program through 2035, banning FBI queries in criminal cases that fall outside the broadly defined “foreign intelligence” umbrella. A high-ranking source familiar with the White House’s views on the 702 program told WIRED on Monday that the White House was open to supporting this reform. Civil liberties groups, however, say requiring the FBI to obtain warrants for purely criminal matters does not go far enough, and would not impact a majority of cases in which 702 data is accessed.
What’s more, the argument goes, in matters of national security, the FBI should already be well prepared to show probable cause in court.
Update 3:45 pm ET, November 28, 2023: A previous version of this story described new congressional legislation as requiring the FBI to obtain warrants in cases unrelated to foreign intelligence. Instead, it bans those queries outright. We regret the error.
