For the third time since December, House Speaker Mike Johnson has failed to wrangle support for reauthorizing a critical US surveillance program, raising questions about the future of a law that compels certain businesses to wiretap foreigners on the government’s behalf.
Johnson lost 19 Republicans on Tuesday in a procedural vote that traditionally falls along party lines. Republicans control the House of Representatives but only by a razor-thin margin. The failed vote comes just hours after former US president Donald Trump ordered Republicans to “Kill FISA” in a 2 am post on Truth Social, referring to the Foreign Intelligence Surveillance Act, under which the program is authorized.
The Section 702 surveillance program, which targets foreigners overseas while sweeping up a large amount of US communications as well, is set to sunset on April 19. The program was extended by four months in late December following Johnson’s first failed attempt to hold a vote.
According to congressional sources, they remain uninformed about the potential next steps, WIRED reports.
The underlying program is set to continue into the next year, irrespective of whether Johnson can accumulate another vote in the following week. It’s important to understand that Congress does not explicitly authorize the surveillance. Rather, it extends permission for the US intelligence services to appeal for “certifications” from a clandestine surveillance court on an annual basis.
In February, the Justice Department placed a request for new certifications. Recently, its approval by the court was announced. However, the government’s authority to issue novel directives under the program without the consent of Congress remains an open question.
These certifications, enforced solely due to the “incidental” accumulation of US calls, typically allow the utilization of the program in scenarios involving terrorism, cybercrime, and weapons distribution. Additionally, US intelligence authorities have boasted the program as a fundamental tool in battling the influx of fentanyl-related substances imported into the US from abroad.
The program continues to be contentious because of a number of infractions by many but primarily the Federal Bureau of Investigation, which oversees a database containing a fraction of the raw data accumulated under 702.
Although the government claims it only “aims” at foreign entities, it concedes that it collects a significant amount of US communications in the process (the precise quantity, it says, is impossible to determine). Nonetheless, it contends that once these communications come under the government’s control, it’s constitutionally valid for federal agents to examine those wiretaps without needing a warrant.
In the previous year, an unexpected coalition of progressive and conservative legislators came together in an effort to put a stop to these warrantless searches, many of the Republicans involved were explicitly critical of the FBI following its abuse of FISA to focus on a Trump campaign staffer in 2016. (The 702 program, which is just a small part of FISA, was not affected by that specific controversy.)
The suggested alterations to the Section 702 program, which were supported by members of the House Intelligence Committee and Johnson (who was in favor of a warrant rule despite his current opposition), have been slammed by privacy experts.
“It seems Congressional leadership needs to be reminded that these privacy protections are overwhelmingly popular,” says Sean Vitka, policy director at Demand Progress, a civil liberties–focused nonprofit. “Surveillance reformers remain willing and able to do that.”
A group of attorneys—among the few to ever present arguments before the Foreign Intelligence Surveillance Court—said in a statement on Tuesday that an amendment offered up by the Intel committee risked dramatically increasing the number of US businesses forced to cooperate with the program.
Declassified filings released by the FISA court last year revealed that the FBI had misused the 702 program more than 278,000 times, including, as reported by The Washington Post, against “crime victims, January 6 riot suspects, people arrested at protests after the policing killing of George Floyd in 2020 and—in one case—19,000 donors to a congressional candidate.”
James Czerniawaski, a senior policy analyst at Americans for Prosperity, a Washington, DC, think tank pushing for changes to Section 702, says that despite recognizing its value, it remained a “troubled program” in need of “significant and meaningful reforms.”
“The outcome of today was completely avoidable,” he says, “but it requires the Intelligence Community and its allies to recognize that its days of unaccountable and unconditional spying on Americans are over.”
Karen Williams
Vittoria Elliott
Lauren Goode
Reece Rogers
