President Joe Biden has signed legislation that reauthorizes a controversial U.S. surveillance law that has faced criticism over concerns that the program would be used to comb through Americans’ personal data.
The vote came after lingering disagreements over the controversial surveillance program had Senate leadership scrambling to strike a deal on the rules of debate and amendments.
Lawmakers took votes on a series of amendments that would strengthen civil liberty protections.
However, none of these—including an amendment by Sen. Dick Durbin (D-Ill.) to require a warrant to search Americans’ Section 702 data and another by Sen. Rand Paul (R-Ky.) to prohibit federal law enforcement from purchasing Americans’ data from third-party brokers—were passed by the Senate.
That’s, in part, because senators wanted to ensure the authority didn’t lapse, as the vote began less than four hours before it was due to expire.
Sen. Mark Warner (D-Va.), head of the Senate Intelligence Committee, urged other lawmakers at the start of the vote series to oppose all amendments, as they would render Congress unable to reauthorize the program before it expires, as any amendments would need to be authorized by a vote of the House.
Mr. Paul, a leading proponent of making changes to the program, replied, “We’ve had five years to do this,” accusing supporters of Section 702 of waiting until the eleventh hour to reauthorize the program in order to force its passage unamended.
Critics said its speedy reauthorization was critical for national security.
“The threats to American security are flashing red,” Minority Leader Mitch McConnell (R-Ky.) said. “Our adversaries are as intent as ever on sowing chaos and violence, and a vote to send this critical legislation back to the House today is a vote to make their job easier. The Senate must not let Section 702 go dark.”
Sen. Roger Marshall (R-Kan.) expressed frustration over the process of voting on the bill, which made it nearly impossible for any Senate amendments to pass.
Ahead of its final passage, he predicted that none of the amendments—including his own—would pass because of the last-minute nature of the vote.
‘A Substantial and Dangerous Expansion’
FISA Section 702 authorizes intelligence agencies to conduct warrantless surveillance on foreign nationals overseas. But the FBI’s rampant misuse of the tool to spy on U.S. citizens has alarmed those on both ends of the political spectrum.Sen. Ron Wyden (D-Ore.) described the bill as “a very substantial and dangerous expansion” of the federal government’s warrantless surveillance authorities.
One provision of the bill expands the list of electronic service providers that the federal government could compel to provide the communications of U.S. citizens who are suspected of having contacted foreign targets, he noted.
“You don’t have to change the targeting rules to threaten Americans’ privacy,” Mr. Wyden said. “If the government thinks that its foreign targets are communicating with people in the United States, they can go right to the source—the Wi-Fi, the phone lines, servers, servers that transmit or store those communications.”
Sen. Josh Hawley (R-Mo.) shared that concern, warning in a post on social media platform X, formerly known as Twitter, that the bill would “turn landlords and computer repairmen into spies.”
In a speech on the floor, Sen. Mike Lee (R-Utah) argued that the bill, rather than reforming FISA, expands it.
“In fact, [the bill] authorizes the largest expansion of surveillance on U.S. domestic soil since the passage of the PATRIOT Act,” Mr. Lee said.
“Egregious Fourth Amendment violations against U.S. citizens will increase dramatically if this bill is passed into law as it stands now.”
Mr. Paul lamented the passage of the authority unamended in a post on X.
Warrant Requirements Divide Congress
Republicans and Democrats alike have voiced support for requiring intelligence agencies to obtain warrants—for which they would need to show probable cause to believe a crime was committed—to view the communications of U.S. citizens.An amendment to require a warrant to query Americans’ Section 702 data was taken up in both chambers but failed on each occasion.
Sen. John Cornyn (R-Texas) argued that adding such a requirement would “decimate the effectiveness of Section 702.”
“Section 702 provides the agility we need to stay ahead,” Mr. Cornyn said on the Senate floor. “Requiring a warrant for every inquiry into lawfully collected information in the 702 database would significantly hinder the ability to respond to emerging threats.”
The senator touted the measure before the Senate as a “reform bill” that, even without a warrant provision, addresses many of the issues that have been raised about Section 702 in its current form.
Specifically, the bill narrows the list of those allowed to authorize and search the FISA 702 database, prohibits the tool’s use to collect evidence of a crime, and institutes new requirements on applications to the Foreign Intelligence Surveillance Court that target U.S. persons. The measure also strengthens penalties for illegal inquiries and makes it easier for Congress to conduct oversight of the program.
Mr. Cornyn also charged that if Section 702 were not reauthorized, U.S. intelligence capabilities would “take a hit—there’s no question about it.”
The White House has taken the same position on the bill.
Last week, Mr. Sullivan put out a statement applauding Senate leaders for quickly taking up the measure.
“This legislation, which passed the House with robust bipartisan support, ensures that the U.S. government has the tools to protect our national security while dramatically enhancing protections for privacy and civil liberties,” he said while calling on the Senate to send it to the president’s desk “quickly.”
