A bill introduced by Senators Dick Durbin and Mike Lee to reauthorize the Section 702 surveillance program is the fifth bill introduced in Congress this winter. The authority is set to expire in a month, disrupting a global eavesdropping program that reportedly informs a third of articles in the President’s Daily Briefing – one morning”tour along the horizon‘of the biggest concerns of American spies.
But the stakes aren’t exactly so clear. With or without Congress, the Biden administration will request court approval to extend the 702 program until 2025. Ever since U.S. Representative Mike Johnson took over the presidency of the House of Representatives, he has failed to organize a vote on the program. Recently outpaced by Mike Turner, the chairman of the House Intelligence Committee, Johnson was forced to end a vote after a month of negotiations.
This, even though Congress can essentially agree on one thing: that the 702 program is vital to national defense and should not expire. Johnson has again promised to hold a vote on the issue, this time after Easter. And historically, this is the point where things start to fall apart.
The biggest hurdle to reauthorizing the program is a dispute among lawmakers over whether the government should get search warrants before searching Americans through 702, a massive wiretap database full of millions of email, voice and text conversations intercepted by spies .
The Durbin-Lee bill includes adjustments that, the authors say, are designed to meet the Biden administration halfway. Unlike previous legislation, the Security and Freedom Enhancement (SAFE) Act does not demand that the FBI obtain a warrant before merely searching the 702 database for domestic communications. Only if the results are positive will they need one, and only then if researchers actually want to read what they found.
But without going to court, investigators can still find out a lot. They can find out if the communication they are looking for even exists, when the call was made and with whom. And because it’s usually trivial for law enforcement to obtain these types of documents, it’s a compromise that reformers are unlikely to lose sleep over.
This one change makes it even harder for the FBI to argue to lawmakers that arrest warrants will hinder investigations or destroy the 702 program altogether. “This limited command requirement has been carefully crafted to ensure it is feasible to implement,” Durbin said, “and sufficiently flexible to address legitimate security needs.”
“There is little doubt that Section 702 is a valuable national security tool,” Durbin added, but the program wipes out “enormous amounts of American communications.”
“Even after implementing compliance measures, the FBI still conducted more than 200,000 warrantless searches of U.S. communications in just one year – more than 500 warrantless searches per day,” he says.
The SAFE Act includes the same menu of emergency exceptions that House Judiciary Committee members offered in previously introduced legislation. The exceptions could allow the FBI to ignore the warrant’s requirements during emergency situations, such as those facing imminent harm or death. The agency can search the database at its discretion using “known threat signatures” that also relate to cybercrime, a loophole designed to help the FBI avoid legal red tape while limiting damage from malicious software.