Section 702 surveillance could be renewed in funding bill, sources say

A pair of House committees on Wednesday afternoon punted discussions on extending and reforming a contested spying power after lawmakers from each panel threatened to tank the measure over disagreements about its scale and reach, but it’s now possible the extension will be lodged into a must-pass spending bill being voted on next month to continue funding parts of the federal government, according to two people familiar with the matter who spoke on the condition of anonymity due to the sensitivity of the discussions.

The tool in question — Section 702 of the Foreign Intelligence Surveillance Act — enables the FBI and other national security authorities to sweep up foreign communications like emails or text messages and use them in investigations related to national security and terrorist threats. The 702 authority permits this collection even if a U.S. citizen or person residing in the United States is on the other side of the communication stream, despite Fourth Amendment protections against unlawful search. This has raised concerns among privacy advocates and others about how American conversations are collected in the process.

“In order to allow Congress more time to reach consensus on how best to reform FISA and Section 702 while maintaining the integrity of our critical national security programs, the House will consider the reform and reauthorization bill at a later date,” Raj Shah, a spokesperson for House Speaker Mike Johnson, R-La. said in a statement.

The renewal debate hit a stalemate at the end of last year. The spying power was extended until April 19 of this year, unless reauthorized by Congress.

Since then, the two House panels, the Select Permanent Committee on Intelligence and Judiciary Committee, have been at odds over how to amend the surveillance authority, which the Biden administration and intelligence officials say has been used to foil terrorist attacks on U.S. soil and has become an essential component of the president’s daily briefings. 

House Intelligence has been pushing to bolster the spying power and reauthorize it for an extended period of time with little reforms, while House Judiciary wants to renew the power for a shorter time window and add restrictions like requiring officials to first seek a warrant before tapping into communications data containing exchanges or other info on Americans.

The Intelligence panel will likely attempt to shove a measure that’s as close as possible to a blanket 702 renewal into a continuing resolution vote next month that will be needed to fund several federal agencies set to run out of money, the people familiar say. Lodging that measure into the CR would force House members skeptical of a blanket 702 renewal to vote ‘yes’ or risk voting to shut down the government, they say.

Discussions on Wednesday came to a standstill as the panels tried to work out their differences in the House Rules Committee.

Judiciary lawmakers were willing to advance the renewal measure as long as Intelligence lawmakers allowed for the warrant requirement provision, as well as a provision that would bar law enforcement from using a workaround to purchase American communications data through data brokers. The talks fell apart as House Intelligence pushed back, urging lawmakers to expand the tool’s reach to include sweeps on other U.S. businesses and further target fentanyl traffickers.

A House Intelligence spokesperson did not return a request for comment. A spokesperson for Rep. Andy Biggs, R-Ariz., a House Judiciary member that has led FISA reform efforts, did not return a request for comment.

The delay came the same day as all members of the House and Senate were granted access to highly classified information reportedly tied to Russian nuclear capabilities in space that was gathered using Section 702 searches. 

Three people familiar with House discussions said Intelligence lawmakers will point to the classified materials to convince skeptical colleagues to support 702’s renewal. But they added the attempt might be viewed as disingenuous and misdirected because it would only highlight the value of 702 searches linked to foreigners, and not the main flash-point of the debate, which is the value of searching U.S. peoples’ communications.

The delay has upset civil liberties advocates who have long called for FISA reforms amid several instances of reported abuses of the 702 tool.

“Privacy advocates and Judiciary Committee leadership made clear this week that we are ready and eager to vote on FISA, and the loopholes that are misused to evade warrant rules. The FBI’s boosters on the Intelligence Committee want to keep punting on this issue because they’re afraid to vote on key reforms,” said Jake Laperruque, who runs the Center for Democracy & Technology’s Security and Surveillance Project. 

“These votes are long overdue, and something the American people deserve. It’s time to stop punting and bring the debate over warrantless FISA surveillance to the House floor,” he added.