The Future of America’s Biggest Spy Program Is Being Decided Right Now
The US Congress will this week decide the fate of Section 702, a major surveillance program that will soon expire if lawmakers do not act. WIRED is tracking the major developments as they unfold.
The United States government, like its rivals in Moscow and Beijing, has poured untold millions of dollars into quietly turning the phones and internet browsers of its own citizens into a powerful intelligence-gathering tool. Shadowy deals between federal agencies and commercial data brokers have helped the US intelligence system to amass a “large amount” of what its own experts term “intimate information” on Americans.
Most US citizens are in the dark as to the true scope and scale of the surveillance they’re under.
House speaker Mike Johnson—whose brief tenure as speaker has been roiled by an ongoing debate over domestic intelligence abuses—previously supported several privacy measures that, now in power, he is working to defeat, including strong new limits on the government’s access to data.
This week, Johnson is working to resolve the lingering issue of reauthorizing Section 702, a key foreign surveillance program authorized by Congress to target terrorists, cybercriminals, and narcotics traffickers overseas. The program is set to officially expire on April 19.
Congressional sources tell WIRED that a vote to salvage the program could come as early as Thursday, following a series of scheduled briefings on Tuesday and Wednesday between lawmakers and intelligence officials, as well as a number of smaller votes that may significantly modify the terms of the program for years to come.
The focus of privacy advocates has turned almost entirely to an amendment that aims to force the FBI and other agencies to apply for a warrant before accessing the communications of Americans incidentally captured by the US under the 702 program.
Thursday’s vote over the 702 program is at least the third scheduled by the speaker since December. As Johnson has in each case waited until the final moment to delay the vote, a fog of uncertainty surrounds the whole of the process. Privately, lawmakers are discussing next steps should the speaker decide to simply let the program expire, avoiding new statutory limits on the government's most-prized surveillance weapon.
To keep pace with a situation that is sure to evolve rapidly over the next 48 hours, WIRED will update this article with the latest details as they become available. See below for the latest developments.
Judiciary Leaders Call Out FBI’s History of Abuse
Jim Jordan, the Republican chairman of the House Judiciary Committee, and a leading advocate for stronger privacy under 702 among conservatives, drew attention in his testimony Tuesday to the litany of surveillance abuses first reported by The Washington Post one year ago.
Court documents declassified and released by the FISA court last year found that the FBI had misused the 702 program more than 278,000 times, including, as The Post reported, against “crime victims, Jan. 6 riot suspects, people arrested at protests after the policing killing of George Floyd in 2020 and—in one case—19,000 donors to a congressional candidate.”
“The fundamental question, still, is if the FBI wouldn't follow the procedures in place 278,000 times ... are new requirements going to be enough to safeguard American’ liberties?” Jordan says. "When you have the history we have with this organization, relative to not following the rules, we think you need a separate but equal branch of the government to approve a warrant before you can query American citizens' information.”
Jarrold Nadler—Jordan's Democratic counterpart on the Judiciary—concurred, calling even more emphatically on Congress to “rein in abuse of FISA Section 702 authorities by the intelligence community.”
“Yes, there are already laws on the books to protect Americans from unauthorized government surveillance,” says Nadler. “But we know from our oversight efforts and the intelligence community's own reporting that these laws are often disregarded and are at the very least inadequate to keep this powerful surveillance tool in check.”
The House Rules Committee is currently holding a hearing that will determine what the final text of the 702-reauthorization bill will look like and which amendments will be offered up for a vote on the House floor.
Both the House Judiciary and Intelligence committees are expected to offer up several amendments, with the latter aiming to impose new warrant requirements on the FBI prior to querying the 702 database for information on Americans. Watch the hearing below:
Top Experts Say House Speaker’s Bill Significantly Expands US Surveillance
Few attorneys have ever appeared before the secret surveillance court overseeing the Section 702 program. Three of them just released their own analysis of the reauthorization bill Speaker Johnson is putting up for a vote.
The bad news, they say, is that the bill still dramatically increases the number of companies that the US government can target under Section 702. This is despite a few “marginal” improvements to the text since it was last introduced.
Marc Zwillinger, one of only a handful of lawyers to ever serve as an advisor to the Foreign Intelligence Surveillance Court (FISC), first wrote about the language in December, accusing the House Intelligence Committee (or HPSCI) of attempting to “significantly expand the government’s authority under FISA 702” by broadening the scope of businesses whose cooperation the government can compel.
Emails between House staff members obtained by WIRED show that HPSCI was prepared to introduce the same language in February before its chairman, Mike Turner, took steps to ensure the vote was called off.
On Tuesday, Zwillinger and coauthors Steve Lane and Jacob Sommor described the latest version of the bill as a “marginal improvement” but, nevertheless, “problematic.” The main addition to the text is a list that excludes certain categories of businesses from being compelled to cooperate with 702 demands, including "dwellings, restaurants, and community facilities."
Zwillinger notes that this change may reduce the number of businesses the government can target, but adds the need to include such a list at all only serves to demonstrate how the overall breadth of the program is being greatly expanded.