The Shadow of a Backroom Deal Threatens Section 702 Surveillance Debate

Dell Cameron

Twice in the past decade, legislation limiting the United States government’s domestic surveillance powers sailed through the US House of Representatives. Attached to bills that would ultimately become law, both of these pro-privacy amendments were killed off in the final hours of consideration—erased each time in secret meetings held among a select group of congressional power brokers. Capitol Hill sources familiar with ongoing negotiations over a top US surveillance program fear House leaders may once again scrap popular civil-liberty-focused reforms.

Last week, House members became aware that closed-door discussions were ongoing at the highest levels concerning the latest pro-privacy reforms to gain widespread legislative support. Public reporting on the discussions, first disclosed by Politico, set off a firestorm of speculation over whether another deal may have been quietly struck to prolong a domestic surveillance program no longer assumed to have the support of a majority of Congress.

Sources with knowledge of ongoing negotiations over the future of Section 702—a controversial but pivotal US foreign surveillance program—say a host of pro-privacy reforms, including new warrant requirements for obtaining commercially available data, have gained serious traction among an anomalous coalition of progressives and conservatives otherwise at odds on most matters. These sources remained anonymous due to being unauthorized to publicly discuss ongoing negotiations.

A source knowledgeable about the 702 fight has disclosed to WIRED that recently, House speaker Mike Johnson and House majority leader Steve Scalise had a private meeting to deliberate on creating a new bill to authorize the program again. This new bill would be a merger of separate bills proposed in December by the House Judiciary and Intelligence committees. However, real privacy legislation being killed off in these confidential sessions has resulted in concerns among reformists.

An expert in civil liberties expressed their predicament to WIRED as, “This is the room where we get screwed.”

Working from both ends of the surveillance argument, senior aides on the Hill say there is a general agreement of about 90 percent between the two bipartisan factions. However, the last 10 percent, primarily concerning the warrant issue, is where neither side is willing to compromise.

Several aides have associated the protracted nature of the fight, in part, to the relative inexperience of the House speaker on national security topics. They suggested that Johnson, having little prior exposure in this field, hadn’t yet been influenced by the intelligence community. These powerful interests are often accused by congressional staff of regularly employing “fear tactics” to defend surveillance operations that are frequently error-prone and subject to abuse.

Johnson’s lack of any intelligence background, staffers say, would have likely increased his dependence on House intelligence staffers, who, while cultivating a sense of awe due to their access to national secrets, routinely behave as ambassadors between the spy agencies and regular congressional staff.

House members remained in the dark Monday morning as to the details of Johnson and Scalise’s purported plan for Section 702, and whether the compromise—potentially to arrive later this week—would include popular measures aimed at ending a prominent data broker loophole, through which US spy agencies are known to purchase information on Americans for which a warrant is typically required.

Angela Watercutter

Matt Simon

Jaina Grey

Amit Katwala

Johnson, notably, previously voted in favor of legislation that would have drastically reformed the 702 program with a slew of privacy protections.

Despite the uncommon bipartisan support for reforming Section 702, sources familiar with the negotiations say pro-privacy amendments have a history of dying in backroom deals. An amendment proposed last summer to ban the US military from tracking Americans’ cell phones without a warrant was snuffed out in a closed-door session despite winning widespread support in the House. Yet another amendment—which would have done little to interfere with the federal government’s domestic surveillance work—likewise gained support in the House two years ago. But even this half-measure ultimately found itself on the chopping block after negotiations were moved into rooms open to neither the public nor the press.

Many were surprised by the effectiveness of the most recent round of pro-privacy bipartisanship in challenging national security protocols. There had not been expected to be much opposition to renewing surveillance procedures a year ago, according to congressional insiders. Even the biggest critics of the 702 program have admitted it is likely essential for national defense in the US, playing a key role in investigating terrorist threats, acts of espionage, and the ongoing influx of cyberattacks aimed at US corporations and infrastructure.

However, in contrast to past years, significant opposition to continuing the program as it exists today emerged in autumn 2023. This opposition, combined with a sudden dispute over who should be the Speaker of the House in October, left little hope for an easy reauthorization of Section 702. Subsequent attempts to find middle ground in the House fell apart. This left two clear opposing views. One faction believes the FBI should have to obtain warrants before accessing any US phone calls, text messages, or emails intercepted by US spies, while the other group believes this would be too much of a burden for investigators.

The only compromise reached since then could be viewed as a trivial adjustment. Legislators against warrants agreed in December that the FBI should have to get a warrant before accessing 702 data only in investigations that do not have a foreign element. However, civil liberties experts estimate that this would only apply to less than 1 percent of the hundreds of thousands of Americans the FBI investigates every year.

The Section 702 program was most recently extended in December only until April, which coincides with when certifications issued by the Foreign Intelligence Surveillance Court are set to expire. This will terminate the existing obligation for US companies to facilitate wiretap demands from the intelligence community. Some have predicted the intelligence community will start submitting applications for new certifications as soon as next month. This would allow surveillance to carry on smoothly for an additional year, even if congress fails to act.

It is usually the ultimate strategy of congressional leaders to prevent privacy-related bills from being presented for a vote—even when this means that a surveillance program suddenly loses its congressional authorization. In many instances, allowing a program to lapse is more desirable than risking a vote that could establish undesired restrictions in the legislation.

Even when surveillance programs expire, they often find ways to persist. For instance, U.S. legislators proposed bills twice in the past year that sought to prohibit FBI surveillance methods, which technically became illegal four years after Congress failed to renew Section 215, a set of surveillance tools supplied by the Patriot Act, a piece of legislation from the post-9/11 era.

Similar widespread opposition to maintaining the 215 surveillance under the same conditions faced the House leaders, who were Democrats at the time. Instead of risking a vote that could permanently terminate the programs, they simply let it expire. Following this, the FBI has consistently used these surveillance methods, “grandfathering” in a multitude of new cases year after year. Here is a reference for this information.

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