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 allows the US government to monitor communications between Americans and foreign individuals abroad. Numerous calls, texts, and emails are intercepted by government spies each year, often with the necessitated aid of US communications providers.
While the government targets foreign individuals believed to hold “foreign intelligence information,” it also unintentionally gathers conversations of numerous Americans each year. The specific quantity is unknown as the government maintains it’s not feasible to track how many Americans are inadvertently caught up in the process. The government justifies that Americans are not the specific targets hence the surveillance is lawful. Nevertheless, American communications such as calls, texts, and emails might be archived by the government for several years, accessible by law enforcement without a judge’s consent.
The House bill also expansively redefines the legal definition for communication service providers—an issue Marc Zwillinger, and other FISA experts who have already warned about. Zwillinger is one of the few individuals who provide legal advice to the Foreign Intelligence Surveillance Court (FISC).
As stated by US Senator Ron Wyden, opponents of reforms are not only resisting essential changes to FISA, they’re also advocating for a substantial expansion of unwarranted surveillance on American citizens. The proposed amendments would require service providers like cable companies to assist in unwarranted surveillance of American communications.
The FBI’s record of misuse of the program initiated a rare accord last fall between progressive Democrats and Republicans supportive of Trump. Both groups are equally concerned by the FBI’s targeting of activists, journalists, and an incumbent member of Congress. However, in a significant victory for the Biden administration, an amendment that would have introduced new warrant prerequisites for federal agencies accessing American’s 702 data, was rejected by the House members earlier in the day.
According to Sean Vitka, policy director at the civil-liberties-centric nonprofit, Demand Progress, many representatives who denied this vote have a long history of voting for this specific privacy protection. This includes former Speaker Pelosi, Representative Lieu, and Representative Neguse.
Earlier this year, the warrant amendment was approved by the House Judiciary Committee. This committee has long-held jurisdiction over FISA has come under question by allies of the intelligence community. Analysis by the Brennan Center this week discovered that 80 percent of the FISA reauthorization bill’s base text was written by intelligence committee members.
As per the chairman of the House Judiciary Committee, Representative Jim Jordan, the data of three million Americans was looked up in this database of information. The FBI did not even comply with its own rules while carrying out those searches, which elucidates the necessity of a warrant, adds Jordan.
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.
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David Gilbert
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The United States is at its greatest risk of terrorism in more than a decade following the horrific October 7th attack on Israel, and the intelligence community must focus attention and resources on that threat while continuing to stay ahead of China,” Turner and Jim Himes, the top Democrat on the House Intelligence Committee, said in a joint statement after the vote, adding that 702 remains one of the country’s most effective national security tools.
It allows the United States to counter our adversaries, like China and Russia, thwart potential terrorist attacks from ISIS, Al-Qaeda, Hamas, and Hezbollah, and disrupt international drug cartels who are looking to smuggle fentanyl into our nation,” they said.
The FBI introduced a slate of new internal policies to clamp down on the abuse itself, changes that the Biden administration argues are sufficient to ward off future abuse. Knowingly searching the database for information about Americans requires analysts—who must now submit to annual training sessions—to seek approval from higher up the chain of command than before. Running batch queries targeting Americans’ communications now requires a consultation with a government attorney.
While opposing the search warrants, Turner supported a prohibition on searches of 702 data for criminal cases devoid of any foreign element. Despite concurrence from various members, privacy advocates claim the ban falls short of the significant reform heralded by Turner. According to data disclosed by FISC, the ban will realistically influence only a very limited number of cases annually.
Critics argue that relying on the FBI’s own internal controls to avoid constitutional infractions has proved ineffective in the past, suggesting that the bureau cannot be trusted to refrain from warrantless surveillance of Americans.
“Section 702 has been misused under presidents from both political affiliations, and has been employed to illegally monitor the communications of Americans across the entire political spectrum,” contends Kia Hamadanchy, the senior policy counsel at the American Civil Liberties Union. “A warrant requirement needs to be introduced by the Senate to curb this rampant governmental spying.”
Judiciary members had also proposed an amendment to prohibit the government from purchasing Americans’ geolocation data from private corporations. However, at Turner’s request, House speaker Mike Johnson scrapped the amendment earlier in the week.
The US Supreme Court has recognized geolocation data as protected from seizure by the “probable cause” standard. Instead of applying for warrants, the government has often sidestepped the ruling by purchasing GPS data from companies that consumers generally presume are tracking them strictly for marketing reasons.
“They’re buying data. That’s really what they’re doing,” states Warren Davidson, a Republican congressperson from Ohio. “They’re shaping markets to gather the data and they’re bypassing the Fourth Amendment. We need to stop that.”