Four more months of Section 702 snooping slipped into $890B US defense budget bill

Congress renews warrantless spying tool scribbled on back of huge check for Pentagon

US lawmakers today approved an $886 billion defense policy bill that includes a four-month extension to Section 702, the controversial surveillance tool that allows American intelligence to potentially spy on its citizens and permanent residents.

On Thursday, the US House of Representatives voted 310 to 118 to approve the National Defense Authorization Act (NDAA), following the US Senate's passage by a 87 to 13 vote on Wednesday.

It's a massive piece of legislation that will fund among other things pay raises for soldiers, and new ships, aircraft, and weapons. The act also authorizes additional support for Ukraine. President Biden is expected to sign it into law.

Congress needed to pass the law before the end of the year as failing to do so throws a spanner in the works of the United States' military. That hard deadline means legislators often sneak other things into the NDAA, because it’s harder to object to those extra provisions if doing so holds up the defense budget.

This year the biggie bundled up with the NDAA was Section 702 of the Foreign Intelligence Surveillance Act (FISA), which otherwise would have expired on January 1. The NDAA includes a four-month extension of the contentious law that allows US intelligence agencies to conduct warrantless surveillance.

This snooping tool allows Uncle Sam's agents to intercept and analyze the electronic communications of foreigners overseas, ostensibly to help prevent terrorist attacks and other threats to national security. It turns out even messages, phone calls, and emails involving American citizens and permanent residents can be swept up in this dragnet, resulting in the Feds snooping on US persons without a warrant.

This warrantless surveillance makes some lawmakers, along with privacy rights and civil liberties advocates, very twitchy — and for good reasons. US authorities, and in particular the FBI, have abused Section 702 millions of times to spy on protesters, campaign donors, and even a US senator.

While this week’s vote extends the life of Section 702's spying powers, it also pushes the larger debate over warrantless surveillance into the new year.

"It's extremely disappointing that leadership jammed this vote in rather than allowing a vote on FISA 702 on its merits," Jake Laperruque, deputy director of the Center for Democracy and Technology's Security and Surveillance Project, told The Register. "While this is disappointing, we're encouraged by the progress reform legislation has made, and expect Congress will take that legislation up promptly in the new year."

Choosing sides

The legislation Laperruque mentioned is the Protect Liberty and End Warrantless Surveillance Act (HR 6570), recently approved by the House Judiciary Committee after a 35-2 vote.

Now before the House, HR 6570 proposes to reauthorize Section 702 for three years — but with reforms including requiring all US intelligence agencies to obtain a warrant before conducting a US person query.

However, a competing bill, the FISA Reform and Reauthorization Act of 2023 (HR 6611), doesn't include a warrant requirement — and, in fact, includes language that many worry could be used to force private US companies into assisting in government-directed surveillance. The House Intelligence Committee unanimously passed HR 6611.

As The Register reported earlier this week, HR 6611 changes the definition of an electronic communication service provider in a way that expands the range of businesses required to share data with the Feds.

"The Speaker is going to have to decide where he wants to be on this, whether that's on the House Judiciary Committee and the pro-reform side or on the side of the House Intelligence Committee and a fake reform bill that actually expands surveillance," Kia Hamadanchy, senior policy counsel at ACLU, told The Register.

"Once that happens we'll probably see a vote on one of the two bills and the result of that will very much shape what the Senate decides to do," he added.

As we said above, a bill proposed late last month in the US Senate, the FISA Reform and Reauthorization Act of 2023, would also reauthorize Section 702 without a strict warrant requirement.

But then there's also the much broader Government Surveillance Reform Act that seeks to reform Section 702, including adding a warrant requirement, in addition to a whole-of-government snooping and data collecting cleanup. A bipartisan group of lawmakers introduced this proposal in both the House and the Senate in November.

Electronic Frontier Foundation Director of Federal Affairs India McKinney earlier this week called the House Intelligence Committee's 702 reform bill, the HR 6611 one, "a farce." Today, she told The Register she's confident Congress will enact real reform before the April 19 deadline for S.702 hits.

"You can't get away with abusing the program and then ask for more cookies," McKinney said.

"There have been so many reports from so many different avenues, the government's own sources, about how routinely and how massively this program has been abused," she added. "I think we're in the best position that we've been in a long time to actually get real reforms and actually put some real protections in place for the American people." ®

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