For the third time since December, House Speaker Mike Johnson failed to rally support to reauthorize a critical U.S. surveillance program, raising questions about the future of a law that forces certain companies to conduct wiretapping. telephone calls to foreigners on behalf of the government.
Johnson lost to 19 Republicans on Tuesday in a procedural vote that traditionally follows partisan lines. Republicans control the House, but only by a very narrow margin. The failed vote comes just hours after former US President Donald Trump ordered Republicans to “kill FISA” in a 2 a.m. post on Truth Social, referring to the Foreign Intelligence Surveillance Act, under which authorizes the program.
The Section 702 surveillance program, which targets foreigners abroad while intercepting large amounts of American communications, will end next week, on April 19. The program was extended by four months at the end of December following Johnson’s first failed attempt to retain a vote.
Congressional sources tell WIRED they have no idea what the next steps will be.
The program itself will continue into next year, regardless of whether Johnson manages to muster another vote next week. Congress does not directly authorize surveillance. Instead, it allows US intelligence services to request “certifications” from a secret surveillance court annually.
The Justice Department requested new certifications in February. Last week he announced that they had been approved by the court. However, the government’s power to issue new directives under the program without congressional approval remains in question.
The certifications, which are only required due to “incidental” collection of U.S. calls, generally allow the program to be used in cases involving terrorism, cybercrime and weapons proliferation. U.S. intelligence officials have also touted the program as crucial to combating the flood of fentanyl-related substances entering the United States from abroad.
The program remains controversial due to a long list of abuses committed primarily at the Federal Bureau of Investigation, which maintains a database containing a portion of the raw data collected under 702.
Although the government says it only “targets” foreigners, it has acknowledged that it has collected a large trove of American communications in the process. (The actual amount, he says, is impossible to calculate.) However, he claims that once those communications are in the government’s possession, it is constitutional for federal agents to review those wiretaps without a warrant.
An unlikely coalition of progressive and conservative lawmakers formed last year in an effort to end these warrantless searches; Many of the Republicans involved vocal critics of the FBI following its misuse of FISA to target a Trump campaign staffer in 2016. (The 702 program, which is just one part of FISA, was not involved in that controversy in particular).
Privacy experts have criticized proposed changes to the Section 702 program advocated by members of the House Intelligence Committee as well as Johnson, who had previously voted in favor of the warrant requirement even though he now he opposes.
“It seems like congressional leaders need to be reminded that these privacy protections are overwhelmingly popular,” says Sean Vitka, policy director at Demand Progress, a nonprofit focused on civil liberties. “Policing reformers remain willing and able to do so.”
On Tuesday, a group of lawyers, among the few to ever present arguments before the Foreign Intelligence Surveillance Court,said in a statement that an amendment proposed by the Intel committee risked dramatically increasing the number of American companies forced to cooperate with the program.
Declassified documents released by the FISA court last year revealed that the FBI had misused the 702 program more than 278,000 times, including, as reported by Washington Postagainst “crime victims, January 6 riot suspects, people arrested in protests after the police killing of George Floyd in 2020, and, in one case, 19,000 donors to a congressional candidate.”
James Czerniawaski, senior policy analyst at Americans for Prosperity, a Washington, D.C. think tank pushing for changes to Section 702, says that despite recognizing its value, it remains a “problematic program” that needs “significant and significant reforms.” ”.
“Today’s outcome was completely avoidable,” he says, “but it requires the intelligence community and its allies to recognize that their days of unapologetic, unaccountable spying on Americans are over.”