A controversial wiretapping program in the United States days away from expiring has cleared a major hurdle on its path to reauthorization.
After months of delays, false starts and interventions by lawmakers working to preserve and expand the spy powers of the U.S. intelligence community, the House of Representatives voted Friday to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA) for two years.
Legislation expanding the program, controversial for having been abused by the government, passed the House by a vote of 273 to 147. The Senate has yet to approve its own bill.
Section 702 allows the US government to wiretap telephone communications between Americans and foreigners abroad. Hundreds of millions of calls, text messages and emails are intercepted by government spies, each with the “forced assistance” of American communications providers.
The government may strictly target foreigners believed to possess “foreign intelligence information,” but it also eavesdrops on the conversations of untold numbers of Americans each year. (The government says it is impossible to determine how many Americans are caught up in the program.) The government argues that Americans are not being targeted and therefore the wiretaps are legal. However, your calls, text messages and emails can be stored by the government for years and then accessed by authorities without a judge’s permission.
The House bill also dramatically expands the legal definition of communications service providers, something that FISA experts, including Marc Zwillinger—one of the few people who advised the Foreign Intelligence Surveillance Court (FISC)—have publicly warned against this.
“Not only do anti-reformers reject common-sense reforms to FISA, they are also pushing for a major expansion of warrantless spying against Americans,” U.S. Senator Ron Wyden tells WIRED. “His amendment would force your cable handler to be a government spy and help monitor Americans’ communications without a warrant.”
The FBI history of program abuse sparked an unusual détente last fall between progressive Democrats and pro-Trump Republicans, both equally concerned about FBI attacks on activists, journalists and a sitting member of Congress. But in a big victory for the Biden administration, House members voted against an amendment that same day that would have imposed new authorization requirements on federal agencies to access Americans’ 702 data.
“Many members who failed in this vote have a long history of voting in favor of this specific privacy protection,” says Sean Vitka, policy director at the civil liberties nonprofit Demand Progress, “including the former Speaker Pelosi, Rep. Lieu and Rep. Neguse.”
The amendment to the order was approved earlier this year by the House Judiciary Committee, whose long-standing jurisdiction over FISA has been questioned by friends of the intelligence community. An analysis by the Brennan Center this week found that 80 percent of the base text of the FISA reauthorization bill had been written by members of the intelligence committee.
“This database was searched for data on three million Americans,” says Rep. Jim Jordan, chairman of the House Judiciary Committee. “The FBI wasn’t even following their own rules when they conducted those searches. That’s why we need a court order.”
Rep. Mike Turner, who chairs the House Intelligence Committee, campaigned with top spy agency officials for months to defeat the warrant amendment, arguing that it would cost the office precious time and would impede national security investigations. The communications are collected legally and are already in the government’s possession, Turner argued; no additional approval should be required to inspect them.