Congress is gearing up for a potential showdown over the expected reauthorization of a warrantless domestic spying program that’s been misused by the FBI and widely criticized by civil libertarians.
That surveillance program—authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA)—was created after 9/11 with the intention of tracking foreign spies and potential terrorists. But it has predictably morphed into a way for law enforcement agencies to get a warrantless peek at Americans’ phone records, emails, and other electronic communications—the FBI ran more than 3.3 million queries through the Section 702 database in 2021, according to an annual transparency report.
With the program set to expire at the end of this year, Congress has a rare opportunity to reform Section 702 by, at the very least, prohibiting law enforcement from using it to snoop on Americans. So far, that doesn’t seem to be happening.
The Senate voted Thursday to advance the annual National Defense Authorization Act (NDAA), and the 3,000-page bill contains a “clean” reauthorization of Section 702, according to Sen. Mike Lee (R–Utah), a longtime critic of the surveillance program.
“After all we’ve learned about the FBI in recent years, the fact that some members of Congress are still willing to reauthorize FISA 702 without reforms—not even a warrant requirement for “backdoor” surveillance of Americans—makes me wonder if they’re illiterate,” Lee posted to X (formerly Twitter) on Thursday.
Lee says he intends to vote against the NDAA when it comes to the Senate floor for a final vote. He likely won’t be the only Republican to do so, but rolling the Section 702 reauthorization into the larger military spending bill means it will be difficult to prevent its passage.
Instead, the fight will be over the language that gets added to the NDAA. While the Senate is moving forward will full reauthorization, there are competing proposals drafted in the House.
The House Judiciary Committee approved a bill on Wednesday to reauthorize Section 702 with the added requirement that the FBI and other intelligence agencies obtain a warrant before using the program to obtain information about Americans.
“The overwhelming, bipartisan vote in favor of this legislation confirms a mutual interest in protecting our Fourth Amendment privacy rights from rogue intelligence actors,” Rep. Andy Biggs (R–Ariz.), chairman of the House subcommittee on federal surveillance issues, said in a statement. “Any effort to stall consideration or pass a clean extension of the current FISA authorities is a punishment of the American people.”
However, the House Intelligence Committee passed its own version of a Section 702 reauthorization on Thursday. That bill would only require that the FBI establish probable cause before searching the Section 702 database for information about Americans, Roll Call reported.
Hellbound and Down 