A Backroom Deal Looms Over Section 702 Surveillance Fight

Johnson, in particular, previously voted in favor of legislation that would have radically reformed the 702 program with a series of privacy protections.

Despite the unusual nature bipartisan support for Section 702 reform, sources close to the negotiations say pro-privacy amendments have a habit of dying in backroom deals. An amendment proposed last summer to prohibit the U.S. military from tracking Americans' cell phones without a warrant was defeated in a closed session, despite broad support in the House. Another amendment, which would have done little to interfere with the federal government's domestic surveillance work, also won House support two years ago. But even this half-measure eventually ended up on the chopping block after negotiations were moved to rooms open to neither the public nor the press.

The effectiveness of this latest round of pro-privacy bipartisanship has surprised many in the national security establishment. Congressional sources say that a year ago, little resistance to reauthorizing surveillance was expected. Even its biggest critics acknowledge that the 702 program is likely vital to U.S. national defense, crucial to investigations into terrorist threats, espionage, and the constant barrage of cyberattacks targeting U.S. businesses and national infrastructure.

If anything, continuing the program under status quo conditions faced a serious challenge in fall 2023. Compounded by the sudden fight for Speaker of the House in October, the soft reauthorization of Section 702 has become a distant fantasy. Working groups established in the House to find common ground eventually disintegrated, leaving only two distinct factions in their wake: one that believes the FBI should seek arrest warrants before accessing to American calls, text messages and emails intercepted by American spies; and another who says the warrants are too heavy a burden for investigators.

What has since been taken into account as part of a compromise could best be described as a “rounding error”. Lawmakers opposed to warrants agreed in December that the FBI would have to obtain a warrant before accessing 702 records in investigations that lack a foreign component. But of the hundreds of thousands of Americans surveyed each year by the bureau, only a small fraction fall into that category — less than 1 percent, according to some civil liberties experts.

Section 702 The program was last extended in December until April, when certifications issued by the Foreign Intelligence Surveillance Court expire, ending the requirement for U.S. companies to cooperate with wiretapping requests electronics of the intelligence community. Some experts predict that the intelligence community could begin requesting new certifications as early as next month, allowing surveillance to continue uninterrupted for another year even if Congress does not act.

It is often the last resort of congressional leaders to prevent privacy-enhancing bills from coming to a vote, even if the result is that a surveillance program suddenly becomes unauthorized by Congress. It is often better to let a program expire rather than allow a vote if it risks enacting unwanted restrictions into law.

Expired monitoring programs can find ways to continue. For example, US lawmakers introduced two bills last year that included measures to ban FBI surveillance techniques, technically made illegal four years after Congress failed to reauthorize Section 215: a set of surveillance tools provided by the Patriot Act legislation dating back to 9/11.

House leaders – Democrats at the time – faced similar popular opposition to continuing 215 surveillance under status quo conditions. Rather than risk a vote that could permanently kill the programs, we simply let it expire. Since then, the FBI has continued to use surveillance techniques year after year.acquired rights» in a multitude of new cases.

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