The Senate approved an extension of the Warrantless Surveillance Act early Saturday morning, moving to renew it shortly after it expires, a move that national security officials say is essential in the fight against terrorism but privacy advocates say is critical to the rights of Americans. He has submitted a bill to President Biden that denounces it as a threat. .
The law, known as Section 702 of the Foreign Intelligence Surveillance Act (FISA), is almost certain to expire over the weekend, and senators spent much of Friday targeting national security officials and They were unable to reach agreement on whether to consider the changes they opposed. hawk.
But after hours of negotiations, the Senate abruptly reconvened late Friday for a series of votes that rejected those amendments, and early Saturday morning approved a bill extending Section 702 for two years. It received approval with 60 votes. 34.
“This is good news for America’s national security,” Democratic Majority Leader Chuck Schumer of New York said as he stood in Congress late at night to announce the agreement to complete work on the bill. “It would have been dangerous to allow FISA to lapse.”
Attorney General Merrick B. Garland praised the bill’s passage in a statement, calling Section 702 “vital to the Department of Justice’s efforts to protect the American people from terrorist, nation-state, cyber, and other threats.” .
Before final passage, the Senate swiftly rejected a series of amendments proposed by privacy-minded lawmakers. If either bill is approved, it will be sent back to the House and the law will expire for a longer period of time.
“Any amendments added to this bill at this time would be tantamount to repealing the bill,” warned Sen. Mark Warner, Democrat of Virginia and chairman of the Intelligence Committee.
The program has the legal authority to continue operating through April 2025 regardless of whether Congress extends the law, but the White House sent a statement to senators on Friday saying, “Large providers “The company has indicated that it intends to suspend collections,” and another provider warned that the same was true. He said he is considering suspending collections. The statement did not identify them, and the Justice Department declined to discuss them further.
The statement also said the government is confident that the FISA court will order such companies to resume compliance with the program, but there may be a collection gap in the meantime and many providers He added that if the government challenged the program, “the situation would get worse.” The situation can deteriorate very quickly and become dangerous. ” urged senators to pass the House bill without amendments by the midnight deadline.
But Kentucky Republican Sen. Rand Paul, a liberal-leaning Republican, rejected that rationale and said the Senate should be allowed to debate the changes, even if it meant a short delay. .
“This is an argument foisted upon us by FISA supporters who don’t want to discuss it and don’t want to limit it,” he said. “They don’t want warrants, they don’t want anything to protect Americans.”
In the end, the bill received the 60th vote needed to pass just before midnight. But after some twists and turns and all the urgency, the Senate continued to vote for more than 40 minutes to accommodate Sen. Marsha Blackburn, R-Tennessee, before she finally showed up to a nearly empty chamber. I added a “no vote”.
The rejected amendments included a measure that would have required the government to obtain a warrant before viewing Americans’ communications in the program. It was a 42-50 loss.
Privacy advocates have long pushed for some form of warrant requirement, but national security officials have opposed it, saying it would undermine the program’s effectiveness. A similar amendment in the House narrowly failed this week in a tie vote of 212-212.
The Senate also rejected a proposal to remove a provision added by the House that expanded the types of service providers that could be forced to participate in the program. The measure targets certain cloud computing data centers that a FISA court ruled in 2022 to fall outside the current definition of services covered by the law, according to people familiar with the matter.
Privacy advocates warn that this language is too broad and leaves open the possibility of abuse. Sen. Ron Wyden, D-Ore., criticized the provision as “a badly drafted, sweeping new oversight authority that we will no doubt regret.”
But Warner pledged to work with colleagues to “further refine” the definition in a separate bill later this year, and an amendment to remove the provision failed 34-58.
The Senate also rejected Mr. Paul’s proposal to prohibit the government from purchasing Americans’ personal information from data brokers if a warrant is required to compel companies to hand over personal information directly. The House last week passed another bill containing the same bill, titled the Fourth Amendment Not for Sale Act.
Privacy advocates, who have spent more than a year pushing for the warrant, expressed deep frustration that the bill would only expand the scope of the surveillance program instead. Among them was Elizabeth Goitein of the Brennan Center for Justice at New York University School of Law.
“While some senators fought valiantly to protect the civil liberties of Americans, they were unable to overcome the barrage of false and misleading statements from the administration and surveillance hawks against the Congressional Intelligence Committees. ” she said. “This is a truly shameful episode in the history of the United States Congress, and sooner or later the American people will pay the price.”
Section 702 allows the government to send messages from U.S. companies such as AT&T and Google to foreign nationals targeted for foreign intelligence or counterterrorism purposes, even if they are communicating with Americans. , permitting collection without a warrant.
The idea is that in the Internet era, domestic companies are often in charge of communicating with foreigners. But the tool is controversial because the government also collects messages of Americans to and from these foreign targets.
Civil libertarians in Congress have long expressed concerns about Section 702’s impact on Americans’ privacy rights. In recent years, they have been strengthened by the far-right wing of the Republican Party, which is closely aligned with former President Donald J. Trump’s hostility toward the FBI.
The law dates back to a warrantless wiretapping program secretly created by President George W. Bush after the Sept. 11, 2001, terrorist attacks. The program violated his Foreign Intelligence Surveillance Act of 1978, which requires a warrant for domestic national security wiretapping.
After the scheme came to light, Congress legalized its form in 2007 in a short-lived law called the Protect America Act, which increased FISA’s warrant requirements for wiretapping on U.S. soil targeting foreign nationals abroad. I made an exception. Lawmakers enacted a more permanent version of Section 702 the following year and extended it in 2012 and 2018.
Much of the discussion about another update centers on the fact that under current rules, intelligence analysts and FBI agents may search the raw database of Section 702 intercepts for information on Americans. are doing. A hit would allow authorities to read Americans’ private messages collected without a warrant and use them in investigations.
There are strict rules on when such inquiries are allowed, but in recent years, F.B.I. officials have repeatedly conducted investigations for reasons such as lack of sufficient justification or overly broad definitions. It was later found that these standards had been violated. Questionable searches include searches using identifying information for members of Congress, Black Lives Matter protesters, and suspects in the January 6th Capitol riot.
In response, the FBI has strengthened its structure starting in 2021, and the bill codified many of those restrictions.
The law was once again set to expire in December, but Congress voted to extend the deadline until Friday to give it more time to consider proposed changes. But the debate has roiled Congress, especially the often dysfunctional House of Representatives, with plans to debate it in the House repeatedly thwarted and led to last-minute maneuvering.
Before the drama began in the Senate, the bill came back from what appeared to be another failure in the House a week ago. As lawmakers prepare to vote on whether to advance the bill, Trump called on his supporters to “kill FISA.”
Mr. Trump’s rant was part of his long-standing effort to stoke dissatisfaction with the national security establishment. His frustration stems from the inspector general’s finding that the FBI failed to apply for a traditional FISA warrant targeting a former campaign staffer as part of an investigation into Trump’s 2016 campaign’s ties to Russia. It emanates from the beginning.
Although this was a different kind of national security surveillance (traditional FISA required a warrant to target people in the continental United States), 19 far-right Republicans were pushing for Section 702 in the House of Representatives. The deliberations were blocked.
Two days later, Speaker Mike Johnson reinstated the extension, reducing it from five years to two years. That means if Trump wins the 2024 election, he will be in power when it comes up again, but far-right Republicans have allowed the House to vote on it. invoice.
