The Senate agreed to an extension of a warrantless surveillance law early Saturday, requesting its renewal shortly after it expired and passing President Biden into law a law that national security officials say is critical to combating terrorism but privacy advocates say is a threat for the rights of Americans.
The law, known as Section 702 of the Foreign Intelligence Surveillance Act (FISA), appeared all but certain to expire over the weekend as senators were unable to reach agreement for most of Friday on whether to consider changes made by National security officials were rejected by Falcons.
But after hours of negotiations, the Senate abruptly reconvened late Friday for a wave of votes that rejected proposed changes one by one, and early Saturday the bill extending Section 702 for two years received approval with 60 votes, 34.
“We have good news for America’s national security,” said Senator Chuck Schumer of New York, the Democratic majority leader, as he stood during the night session to announce the agreement to complete work on the bill. “It would have been dangerous to let FISA expire.”
In a statement, Attorney General Merrick B. Garland praised the bill’s passage, calling Section 702 “essential to the Department of Justice’s work to protect the American people from terrorist, nation-state, cyber, and other threats.”
Before final passage, the Senate quickly voted down a series of amendments proposed by privacy-conscious lawmakers. Approval of any of them would have sent the bill back to the House of Representatives and suspended the law for an extended period of time.
“Any amendment to this bill added at this time is tantamount to repealing the bill,” warned Sen. Mark Warner, Democrat of Virginia and chairman of the Intelligence Committee.
Although the program is legally authorized to continue operating through April 2025 regardless of whether Congress extended the law, the White House sent a statement to senators on Friday warning them that a “major provider has indicated that he intends to stop collection on Monday,” and that another said they were considering stopping collection. The statement did not identify them and the Justice Department declined to provide further details.
The statement also said that the administration is confident that the FISA court will order such companies to resume compliance with the program, but that there may be collection gaps in the meantime – and if a flood of providers “If the program were to challenge the program, the “situation” could become very dire and dangerous very quickly.” It urged senators to pass the House bill without amendments before the midnight deadline.
But Sen. Rand Paul, the libertarian-leaning Republican from Kentucky, rejected the reasoning, saying the Senate should be allowed to debate changes even if it would result in a short delay.
“This is an argument forced upon us by FISA proponents who want no debate and no restrictions,” he said. “They don’t want warrants and they don’t want anything to protect Americans.”
In the end, the bill received the 60th vote needed to pass just before midnight. But despite the urgency, the Senate left the vote open for more than 40 additional minutes to accommodate Sen. Marsha Blackburn, Republican of Tennessee, who eventually showed up in the nearly empty chamber and voted no.
Among the amendments rejected was a measure that would have required the government to obtain a search warrant before it could view the contents of Americans’ communications included in the program. It was defeated 42 to 50.
Privacy advocates have long sought some form of warrant requirement, which national security officials have opposed, saying it would undermine the effectiveness of the program. A similar amendment narrowly failed in the House this week by a tie of 212-212.
The Senate also rejected a proposal to delete a provision added by the House that expands the types of service providers who can be forced to participate in the program. The measure targets certain cloud computing data centers that the FISA court determined in 2022 do not fall under the current definition of services covered by the law, people familiar with the matter say.
Privacy advocates warn that the wording is too broad and leaves open the potential for abuse. Sen. Ron Wyden, Democrat of Oregon, criticized the provision as a “terribly crafted, sweeping new surveillance authority that we will certainly regret.”
But Mr Warner promised to work with colleagues to “further refine” the definition in another bill later this year, and the amendment to remove the provision was defeated 34-58.
And the Senate rejected a proposal from Mr. Paul to ban the government from buying personal information about Americans from data brokers if it would require a warrant to force a company to hand over that information directly. The House of Representatives passed a separate bill last week called the “Fourth Amendment Is Not For Sale Act,” which includes the same measure.
Privacy advocates, who had spent more than a year pushing for mandatory searches only to see the bill instead expand the reach of the surveillance program, expressed deep frustration. Among them was Elizabeth Goitein of the Brennan Center for Justice at New York University School of Law.
“While some senators have fought valiantly to protect Americans’ civil liberties, they have been unable to withstand the flood of false and misleading statements from the administration and surveillance hawks on the congressional intelligence committees,” she said. “This is a truly shameful episode in the history of the U.S. Congress, and sooner or later the American people will pay the price.”
Section 702 allows the government to use U.S. companies like AT&T and Google to collect the messages of foreign nationals abroad who have been targeted for foreign intelligence or counterterrorism purposes without a warrant — even if they are communicating with Americans.
The idea is that in the age of the Internet, foreigners’ communications are often handled by domestic companies. But the tool is controversial because the government also intercepts messages from Americans to and from these foreign destinations.
Civil libertarians in Congress have long raised concerns about the impact of Section 702 on Americans’ privacy rights. In recent years, they have been bolstered by the far-right Republican faction, which has been closely aligned with former President Donald J. Trump’s hostility to the FBI
The law stems from an unauthorized wiretapping program that President George W. Bush secretly launched after the terrorist attacks of September 11, 2001. It violated the Foreign Intelligence Surveillance Act of 1978, which requires warrants for national security wiretapping on domestic soil.
After the program came to light, Congress legalized a form of it in 2007 in a short-lived law called the Protect America Act, creating an exception to FISA’s authorization requirement for wiretaps on American soil targeting foreign nationals abroad. The legislature enacted Section 702 as a more permanent version the following year and expanded it in 2012 and 2018.
Much of the debate over renewal has centered on the fact that under current rules, intelligence analysts and FBI agents are allowed to search the raw database of Section 702 wiretaps for U.S. information. If a hit occurs, officials can read Americans’ private messages collected without a search warrant and use them for investigations.
While there are strict rules about when such queries are allowed, in recent years F.BI. Officials repeatedly conducted searches that were later found to violate these standards, including because they were not sufficiently justified or were too broad. The problematic queries included searches using the identifiers of a lawmaker, Black Lives Matter protesters and suspects in the Jan. 6 Capitol riots.
In response, the FBI has tightened its systems since 2021 and, with the bill, enshrined many of these restrictions into law.
The law was again set to expire in December, but Congress voted to extend it until Friday to allow more time to consider proposed changes. But the debate rocked Congress, particularly in the often dysfunctional House, and plans to bring it up in the House repeatedly failed, leading to last-minute shenanigans.
Before the drama in the Senate, the bill came back in the House after another apparent failure a week earlier. As lawmakers prepared to vote on submitting the bill, Mr. Trump urged his supporters to “kill FISA.”
Mr. Trump’s blast was part of his years-long effort to stoke discontent with national security agencies. His dissatisfaction stems from an inspector general’s finding that the FBI botched applications for traditional FISA warrants against a former campaign adviser as part of its investigation into ties between Mr. Trump’s 2016 campaign and Russia.
While it was a different type of national security surveillance — traditional FISA requires warrants to target people on American soil — 19 far-right Republicans blocked the House from passing Section 702 legislation.
Two days later, Speaker Mike Johnson revived the deadline, shortening the extension from five years to two years – meaning Mr Trump would be in charge when it comes up again if he wins the 2024 election – and the far-right Republicans allowed the House of Representatives to vote on the bill.
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2024-04-20 05:00:02
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