Controversial surveillance program gets 2-year extension

President Joe Biden on Saturday signed legislation that extends a controversial surveillance authority by two years, following its passage in an 11th-hour standoff on the Senate floor late Friday that concluded just as the spying power went dark.

The Reforming Intelligence and Securing America Act extends Section 702 of the Foreign Intelligence Surveillance Act into 2026, giving intelligence agencies like the National Security Agency continued legal authority to direct U.S. internet and telecom providers to hand over reams of communications data on foreign targets located abroad for use in national security investigations.

The spying authority permits the collection of communications data on U.S. persons linked to foreign targets. Civil liberties advocates have longstanding concerns over whether that practice gives U.S. law enforcement a way around Fourth Amendment rights that bar warrantless searches and seizures. The reauthorization included changes designed to improve law enforcement compliance with existing rules covering access to intercepts of communications of Americans. 

The bill passed in the Senate 60-34, advancing to Biden’s desk. The authority, which was set to expire Friday without congressional reauthorization, was teed up in the high chamber with a handful of amendments from privacy hawks on both sides of the aisle.

Chief among these was a long-sought provision that would have required intelligence analysts to seek court approval before diving into American-linked communications like emails or text messages that are hoovered up and stored in 702 collection databases, but the measure led by Sens. Dick Durbin, D-Ill. and Kevin Cramer, R-N.D. failed in a 42-50 vote.

The intelligence community has frequently argued a warrant requirement would slow down ongoing terrorism investigations and gut the effectiveness of 702. The tool, which spy agencies say is vital for stopping cyberattacks and tracking terror threats, contributes to a major chunk of President Biden’s daily briefings, according to public documents.

Another amendment led by Sen. Ron Wyden, D-Ore., would have stripped out language from an add-in from the House’s passage of the bill on April 12 that modifies the definition of an “electronic communications service provider” from the statute’s original 2008 text.

Privacy advocates said the definition expands viable electronic storage platforms that can be targeted under the ordinance and could be interpreted to allow ordinary Americans employed in data centers to aid in 702 collection practices. The Department of Justice sent letters to the Senate on Thursday in an attempt to quell those concerns, promising to narrowly interpret the wording and arguing the new language modernizes the definition of communications technologies, though civil liberties groups were still not satisfied. The Wyden amendment ultimately failed to pass in a 34-58 vote.

“In today’s heightened global threat environment, the Justice Department will continue to use Section 702 to ensure that our efforts to keep our country safe are informed by the most valuable and timely intelligence, as we continue to uphold our commitment to protect the rights of all Americans,” Attorney General Merrick Garland said in a statement after the Senate passed the bill.

The Biden administration in February filed an extension request for the tool in the Foreign Intelligence Surveillance Court that oversees FISA business, allowing ongoing 702 investigations to continue through 2025. 

But without a formal reauthorization in place by the April 19 deadline, communications providers would have had the ability to opt out of the program. Two major firms would have stopped complying with the statute upon expiration, the Washington Post reported Friday, citing U.S. officials familiar with the matter.

Civil liberties representatives align with intelligence officials about the value of 702 when it’s used to collect data on foreign targets but question its effectiveness in cases where Americans’ conversations are queried. For example, the tool was used to surveil Black Lives Matter activists and participants in the Jan. 6, 2021 attack on the U.S. Capitol. Such cases have been heavily documented by privacy groups and a government-mandated oversight body.

“With President Biden’s signature … this bill will represent the most radical and dangerous expansion of federal surveillance powers in U.S. history, and in terms of Americans’ digital communications, it will effectively render the Fourth Amendment a dead letter,” said Patrick Eddington, a former CIA analyst now serving as a senior homeland security and civil liberties fellow at the Cato Institute.

Amendments adopted in the final bill include a quarterly directive for the FBI to tell Congress the number of U.S. person searches it conducts. It also has new provisions to expand the definition of foreign intelligence to include narcotics trafficking and enables the tool’s use in vetting foreigners entering the country. It also takes on an amendment ending “abouts” collection, which is the practice of scooping up conversations that coincidentally mention foreign targets. “Abouts” activities were banned by the NSA in 2017.

The spying ordinance was born out of Bush-era surveillance measures that gave intelligence agencies a legal framework to invigorate their spying capabilities in the aftermath of the September 11 attacks. It helped lay the groundwork for the mass surveillance revelations that came from ex-NSA contractor Edward Snowden in 2013.