Home Featured House Passes 2-Year Surveillance Law Extension Without Warrant Requirement

House Passes 2-Year Surveillance Law Extension Without Warrant Requirement

House Passes 2-Year Surveillance Law Extension Without Warrant Requirement


In a major turnaround, the House on Friday passed a two-year reauthorization of an expiring warrantless surveillance law that had stalled earlier this week amid G.O.P. resistance — but only after narrowly rejecting a bipartisan effort to restrict searches of Americans’ messages swept up by the program.

The bill now heads to the Senate ahead of the scheduled April 19 expiration of the law, known as Section 702 of the Foreign Intelligence Surveillance Act or FISA. Its passage was a remarkable resuscitation from a collapse just days ago on the House floor after former President Donald J. Trump had urged Republicans to “kill” the law.

Grasping to salvage the measure before the law lapses next week, Speaker Mike Johnson put forward a shorter extension than its originally envisioned five years, persuading hard-right Republicans who had blocked the bill to allow it to move forward. The final vote was 273 to 147. Republicans were split 126-88 on the matter, while Democrats were split 147-59.

Until nearly the last minute, it was unclear what shape the final bill would take as lawmakers considered a series of proposed changes whose fate various members had said would determine their positions. Most prominently, lawmakers first rejected a proposal to ban F.B.I. agents and intelligence analysts from using Americans’ identifiers — like email addresses — to query the repository of messages swept up by the program unless those officials first get warrants.

A vote on an amendment to add a warrant requirement failed with a tie — 212 to 212, with 13 members not voting. Under House rules, a tie results in a failure. 126 Democrats and 86 Republicans voted against the warrant amendment, while 128 Republicans and 84 Democrats voted for it.

Civil liberties advocates have long sought such a restriction to protect Americans’ privacy rights. But national security officials have argued it would cripple the program because they typically use it early in investigations, such as when trying to learn more about a phone number or email account found to be in contact with a suspected foreign spy or terrorist before there is enough evidence to meet a probable cause standard for a warrant.

The debate scrambled the usual partisan lines, with members of both parties on both sides of the question. National security hawks had handily thwarted the warrant proposal in previous years, but its chances were seen as better this time because progressive civil libertarians have been joined by right-wing Republicans who aligned themselves with Mr. Trump’s hostility to the F.B.I. and the intelligence community.

Proponents of adding a warrant requirement were led by top members of the Judiciary Committee, including its chairman, Representative Jim Jordan, an Ohio Republican, and its ranking Democrat, Representative Jerrold Nadler of New York. They and their allies argued on Friday that making that change was crucial to protecting Americans’ constitutional rights.

“Searching for Americans’ private communications in the 702 database — communications the government otherwise would not have access to without a warrant — is the constitutional equivalent of conducting a warrantless search,” Mr. Nadler said.

Opposition to the warrant amendment was led by members of the Intelligence Committee, including its leaders, Representatives Michael R. Turner of Ohio, the Republican chairman, and Jim Himes of Connecticut, its top Democrat. They argued that adding a warrant requirement would effectively “blind” security officials to potentially crucial information it already possesses.

The House also passed several other significant amendments. They included allowing the Section 702 program to be used to gather intelligence on foreign narcotics trafficking organizations and to vet potential foreign visitors to the United States; empowering certain Congressional leaders to observe classified hearings before a court that oversees national-security surveillance; and expanding the types of companies with access to foreign communications that can be required to participate in the program.

But the substantive debate in recent days has been overshadowed by a political furor sparked by Mr. Trump, who this week directed lawmakers in a social media post to “KILL FISA,” asserting that it had been used to illegally spy on his 2016 presidential campaign.

Mr. Trump’s assertion was incoherent as a matter of law and policy because there are two types of FISA surveillance, and the type that is expiring — Section 702 — has nothing to do with the type that the F.B.I. used in its investigation into the links between his campaign and Russia amid Moscow’s covert efforts to help him win the 2016 election.

Wiretapping for national security investigations targeting Americans or people on domestic soil is governed by the traditional type of FISA, which requires warrants; an inspector general found that the F.B.I. had botched its warrant applications to wiretap a former Trump campaign adviser during the Russia investigation. That type of FISA, which Congress created in 1978, is not expiring.

By contrast, Section 702 allows the government to collect, from U.S. companies like AT&T and Google and without a warrant, the messages of foreigners abroad who have been targeted for foreign intelligence or counterterrorism purposes — even when they are communicating with Americans. It legalized a form of the warrantless wiretapping program former President George W. Bush secretly created after the terrorist attacks of Sept. 11, 2001.

Still, Mr. Trump maintains substantial political sway over Republicans in Congress, and after his broadside, 19 House Republicans, most aligned with the ultraconservative House Freedom Caucus, voted on Wednesday to block the bill’s consideration, sending leaders back to the drawing board.

Mr. Johnson’s decision to reduce the bill to two years from five — meaning that if Mr. Trump were to win the 2024 election, he would control the White House when it came up for renewal — enabled the hard-right Republican defectors to claim victory while allowing the matter to move forward. All 19 of them switched their positions on Friday and voted to bring up the bill.

It remains to be seen whether the Senate will pass the bill before Section 702 expires on April 19. But that is a soft deadline: the program can continue operating until April 2025 because last week the FISA court granted a government request authorizing it for another year. Under the law, surveillance activity can continue so long as there are active court orders allowing it, even if the underlying statute expires.

Even so, the intelligence community has urged Congress to pass a reauthorization of the legislation before the program enters that sort of legal limbo, raising the possibility that providers might balk at continuing to cooperate and leading to gaps in collection until any ensuing court fights over the question can be resolved.

While the bill does not have the warrant requirement long sought by privacy advocates, it does impose many new restrictions on how the F.B.I. may search for Americans’ information in the repository of communications swept up under the program.

While there are limits on how that material can be searched for and used, the F.B.I. has repeatedly violated those constraints in recent years — including improperly querying for information about Black Lives Matter protesters and people suspected of participating in the Jan. 6, 2021, Capitol riot.

The F.B.I. has since tightened its system to reduce the risk of queries that violate the standards, and the bill under consideration would codify those changes and add reporting requirements, as well as limiting the number of officials with access to the repository of raw information.

On Friday, ahead of the vote, a senior national security official, speaking on condition of anonymity to discuss a sensitive matter, asserted that hostile adversaries were watching the congressional debate closely and hoping that lawmakers would deprive U.S. intelligence agencies of a key capability.

Kayla Guo contributed reporting.


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