Johnson, in particular, previously voted for of legislation that would have dramatically reformed the 702 program with a host of privacy protections.
Despite the uncommon bipartisan support for reforming Section 702, sources familiar with the negotiations say pro-privacy amendments have a history of dying in secret deals. A amendment A bill proposed last summer to ban the U.S. military from tracking Americans’ cellphones without a warrant was killed in a closed-door session despite gaining broad support in the House. Yet another amendment, which would have done little to interfere with the federal government’s domestic surveillance work, also won support in the House two years ago. But even this half-measure eventually found itself on the chopping block after negotiations moved into rooms open to neither the public nor the press.
The effectiveness of this latest round of pro-privacy bipartisanship came as a surprise to many in the national security establishment. Congressional sources say that a year ago only weak resistance to reauthorizing surveillance was expected. Even its biggest detractors openly acknowledge that the 702 program is likely vital to U.S. national defense, crucial to investigations of terrorist threats, acts of espionage and the constant barrage of cyberattacks targeting U.S. businesses and national infrastructure.
On the contrary, in the fall of 2023 a serious challenge arose to continue the program under status quo conditions. Compounded by the sudden fight for House speakership in October, the smooth reauthorization of Section 702 became a distant fantasy. Working groups set up in the House to find common ground eventually disintegrated, leaving only two discernible factions in their wake: One, which believes the FBI should seek warrants before accessing American calls, texts and emails. intercepted by American spies. And another who says that court orders are too heavy a burden for investigators.
What has since been considered a compromise could be better described as a “rounding error.” Lawmakers opposed to warrants agreed in December that the FBI should obtain a warrant before accessing 702 data in investigations that lack a foreign component. But of the hundreds of thousands of Americans consulted by the office each year, only a small fraction fall into this category: less than 1 percent, according to some civil liberties experts.
Section 702 The program was last extended in December through April, when certifications issued by the Foreign Intelligence Surveillance Court expire, ending the requirement that U.S. companies cooperate with the intelligence community’s wiretap demands. Some experts have predicted that the intelligence community could begin applying for new certifications next month, allowing surveillance to continue uninterrupted for another year even if Congress fails to act.
It is often a last resort for congressional leaders to prevent privacy-enhancing bills from reaching the floor for a vote, even if the result is that a surveillance program suddenly ceases to be authorized by Congress. Letting a program expire is often preferable to allowing a vote to take place if it risks enshrining unwanted restrictions in law.
Expired surveillance programs may find ways to continue. U.S. lawmakers twice last year, for example, introduced measures aimed at banning FBI surveillance techniques that technically became illegal four years after Congress failed to reauthorize Section 215 — a package of surveillance tools provided by the 9/11-era Patriot Act legislation.
House leaders (Democrats at the time) faced similar popular opposition to continuing 215 surveillance under status quo conditions. Rather than risk a vote that could permanently end the programs, they were simply allowed to expire. Since then, the FBI has continued to resort to surveillance techniques, year after year,”grandfather”in a series of new cases.