Reform of USA's Section 702 spying rule may make it to a vote this week

Tool that lets spooks observe Americans appears to have been renewed for another year

Everyone's favorite warrantless surveillance tool, FISA Section 702, returns to the US House of Representatives this week and is expected to go to a full House vote on Thursday.

Or, it may all fall apart (again) in the House Rules Committee on Tuesday.

This week’s congressional action follows an 11th-hour certification to conduct surveillance under Section 702 that the Foreign Intelligence Surveillance Court granted to the US Justice Department on Friday. This means that the FBI and other US intelligence agencies can continue their current snooping practices for another year, even if Section 702 expires later this month.

Here's what's at stake, and what are the key sticking points in this hotly contested amendment to the Foreign Intelligence Surveillance Act (FISA).

At issue is FISA Section 702, which allows American intelligence agencies to spy on foreigners overseas who are believed to be criminals or threats to national security.

However, if these foreign targets are communicating with US persons, then law allows the FBI, CIA, NSA and National Counterterrorism Center (NCTC) to probe calls, texts and emails without a warrant. That ability to peruse Americans’ conversations doesn't sit well with groups as diverse as the American Civil Liberties Union (ACLU) and the House Freedom Caucus.

These concerns aren't without merit: Section 702 has been abused numerous times by the FBI to spy on American protesters and a US senator, among others.

US intelligence agencies and the White House have repeatedly argued that further restrictions to Section 702 spying powers will "amount to a de facto ban," and leave America weaker.

After competing bills to reauthorize and amend the contentious surveillance tool failed in the US House of Representatives late last year, lawmakers slipped renewal of Section 702 into a massive defense spending bill and pushed the reauthorization into 2024.

Two key reforms

That brings us to now, when Section 702 is, once again, set to expire on April 19. Unless Congress renews it.

The House Rules Committee is set to vote on a Section 702 on Tuesday, before a full vote on the House floor vote on Thursday — but it may be without two key amendments that privacy advocates have fought hard to include.

One of these would require the FBI and friends to obtain a warrant before conducting so-called US persons queries under Section 702. And another that would ban data brokers from selling consumer information to law enforcement.

The House Intelligence Committee strongly opposes the data broker amendment, and we're told that House Speaker Mike Johnson (R-LA) — who is already facing trouble from his own party — won't allow the data broker ban to be added in as an amendment in an effort to appease House Intel Committee Chair Mike Turner (R-OH).

It's also worth noting that the Biden administration doesn't like the data broker ban — despite its own efforts to prohibit China, Russia, and other foreign governments from buying data broker information about Americans.

Another Section 702 amendment that the White House and FBI really don't like - and which privacy hawks say is crucial - would require the US intelligence agencies to obtain a warrant before conducting US persons queries. This warrant amendment has champions on both side of the political aisle, including Representatives Warren Davidson (R-OH) and Zoe Lofgren (D-CA).

"We think it's crucial to have court approval before the government can access US persons' queries in the Section 702 databases," Electronic Frontier Foundation (EFF) legal fellow Brendan Gilligan told The Register.

"This, and the data broker amendments go hand in hand," he added. "It makes no sense to prohibit the government from warrantlessly accessing Americans communications from databases, and then be able to buy them from data brokers."

Nothing changes for another year anyway

Regardless of whether either of these two amendments make it to a vote on the House floor — or if the surveillance tool even survives the April 19 expiration date — it appears that the FBI will be able to conduct searches of US persons until at least next year.

This is because, late Friday, the FISA Court reportedly authorized a new one-year certification allowing the Justice Department to conduct surveillance under Section 702. Otherwise, these spying powers would have expired on April 11.

The Register has asked the DOJ multiple times to confirm that the FISA Court on Friday authorized the certifications allowing the program to operate for another year, but has yet to receive any response.

In February, however, when asked about the White House seeking court approval before Congress had a chance to vote on the contentious surveillance program, Josh Geltzer, US National Security Council legal advisor, said it wasn't a big deal.

"For the executive branch to go to the FISA Court now is business as usual — nothing more, nothing else," Geltzer told The Register.

Geltzer also said that the Biden administration wants to see lawmakers reauthorize Section 702.

"The executive branch will continue our intensive efforts — underway for over a year now — to work with Congress to sustainably reauthorize this vital authority while enhancing substantially its protections and guardrails," he added.

Kia Hamadanchy, senior policy counsel at the ACLU, however, said the move "circumvents the proper role of Congress" and has much starker implications for the future of warrantless snooping under Section 702.

"It means the April 19 deadline isn't a real one as they can continue current operations without an extension under this certification until April 2025," he told The Register. ®

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