Senate Leaders Plan to Prolong NSA Surveillance Using a Must-Pass Bill

Leaders in the United States Senate have been discussing plans to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA) beyond its December 31 deadline by amending must-pass legislation this month.

A senior congressional aide tells WIRED that leadership offices and judiciary sources have both disclosed that discussions are underway about saving the Section 702 program in the short term by attaching an amendment extending it to a bill that is sorely needed to extend federal funding and avert a government shutdown one week from now.

The program, last extended in 2018, is due to expire at the end of the year. Without a vote to reauthorize 702, the US government will lose its ability to obtain year-long “certifications” compelling telecommunications companies to wiretap overseas calls, text messages, and emails without being served individual warrants or subpoenas.

Whether the authority is reauthorized before expiring on January 1 or not, the actual surveillance is likely to continue into the spring, when this year’s certifications expire.

Extending the program by attaching it to another bill that Congress can’t avoid is a risky political maneuver that will cause significant unrest among a majority of House lawmakers and a number of senators who are working to reform the 702 program. A top priority for privacy hawks is curtailing the ability of federal law enforcement to use 702 data “incidentally” collected on Americans. The 702 program collects communications from two sources: internet service providers and the companies that conduct traffic between them. The latter source is tapped less frequently but intercepts a greater quantity of domestic communications.

An aide to Jim Jordan, the Republican chair of the House Judiciary Committee, said Jordan was firmly on the side of the reformers and would not support extending 702 through a temporary measure. Chuck Schumer, the senate majority leader, did not respond to a request for comment Thursday afternoon.

“America’s security and its citizens’ rights demand more than a short-term fix. Congress has had all year to scrutinize and address this crucial policy question,” says James Czerniawski, a senior policy analyst at the nonprofit Americans for Prosperity. “Doing a short-term extension punts the ball on the critical reforms desperately needed to this program to protect Americans civil liberties.”

While surveillance of US calls is illegal and unconstitutional without a warrant based on probable cause, the government is permitted to collect domestic calls for specific national security purposes under procedures created to minimize its access to them later. The US National Security Agency, which conducts electronic surveillance for the Pentagon, is only permitted to eavesdrop on foreigners who are overseas. Those foreigners, however, many of whom are likely government officials and not criminals or terrorists, frequently exchange calls and emails with people inside the United States, and those get collected as well.

Roughly a quarter of a million people are targeted by the program each year, and it is estimated that the number of individual messages collected reaches into the hundreds of millions.

While the NSA is not allowed to target the communications of “US persons” (an umbrella term for US citizens, legal residents, and corporations), the government has long been permitted to query the database for information on US persons without obtaining warrants.

It is known that the 702 program collects significant numbers of US communications, but the exact quantity is unknown, even to the government. The NSA argues that it would be unfeasible to count the number of Americans incidentally spied on without analyzing the collection thoroughly, further imperiling people’s rights. Privacy watchdogs who have classified knowledge of the program say the term “incidental” is deceiving, in that it makes the volume of the collection sound small.

The term is also frequently conflated with wiretaps that accidentally target Americans, which is called “inadvertent” collection. Incidental collection is factored into the program as an acceptable risk to Americans’ civil liberties, ameliorated by various internal procedures approved by the Justice Department and the Office of the Director of National Intelligence. Critics of the program say these procedures are frequently violated and do little to nothing to stop the FBI from warrantlessly accessing Americans’ calls and emails without evidence that they’ve committed a crime.

Congressional offices striving for a reform—introduced this week in the form of a bipartisan, bicameral bill known as the Government Surveillance Reform Act (GSRA)—say the White House has lobbied Congress for a “clean” reauthorization. Renewing the 702 program for another four to five years without additional privacy safeguards is in line with the intelligence community’s own desires.

The same sources say other bills may also be in the works and could drop by December, excluding many of the additional protections offered by the GSRA. The bill, which has significant support in the House, bans warrantless FBI searches of 702 data but also curtails the use of commercial data available to the government—a known loophole for evading warrant requirements available to law enforcement and intelligence agencies at virtually all levels of government. Many Republicans favor the bill because it would strip security clearances from federal employees caught abusing their access to the database.

Cynthia Choi, cofounder of the nonprofit Stop AAPI Hate, which tracks incidents of discrimination against Asian Americans and Pacific Islanders, said the GSRA would prove particularly crucial in the fight for privacy of immigrant communities. “It is disappointing to learn that Majority Leader Schumer and other congressional leaders are reportedly considering depriving us of this critical opportunity to stop the unjust warrantless surveillance of our family and friends,” she says. “They are well aware that we have experienced decades of wrongful targeting, and they should be fighting alongside us to ensure these issues are addressed as soon as possible.”