Section 702: The Future of the Biggest US Spy Program Hangs in the Balance

The United States government, like its rivals in Moscow and Beijing, has poured untold millions of dollars into quietly turning the phones and internet browsers of its own citizens into a powerful intelligence-gathering tool. Shadowy deals between federal agencies and commercial data brokers have helped the US intelligence system to amass a “large amount” of what its own experts term “intimate information” on Americans.

Most US citizens are in the dark as to the true scope and scale of the surveillance they’re under.

House speaker Mike Johnson—whose brief tenure as speaker has been roiled by an ongoing debate over domestic intelligence abuses—previously supported several privacy measures that, now in power, he is working to defeat, including strong new limits on the government’s access to private data.

This week, Johnson is working to resolve the lingering issue of reauthorizing Section 702, a key foreign surveillance program authorized by Congress to target terrorists, cybercriminals, and narcotics traffickers overseas. The program is set to officially expire on April 19.

Congressional sources tell WIRED that a vote to salvage the program could come as early as Thursday, following a series of scheduled briefings on Tuesday and Wednesday between lawmakers and intelligence officials, as well as a number of smaller votes that may significantly modify the terms of the program for years to come.

The focus of privacy advocates has turned almost entirely to an amendment that aims to force the FBI and other agencies to apply for a warrant before accessing the communications of Americans incidentally captured by the US under the 702 program.

Thursday’s vote over the 702 program is at least the third scheduled by the speaker since December. As Johnson has in each case waited until the final moment to delay the vote, a fog of uncertainty surrounds the whole of the process. Privately, lawmakers are discussing next steps should the speaker decide to simply let the program expire, avoiding new statutory limits on the government’s most-prized surveillance weapon.

To keep pace with a situation that is sure to evolve rapidly over the next 48 hours, WIRED will update this article with the latest details as they become available. See below for the latest developments.

House Intel Chair Fires Back at Warrant Seekers

“We are here,” representative Mike Turner told the House Rules Committee, “because the intelligence community failed us. The FBI failed us. The intelligence community failed to properly police themselves, and they abused the tools that we gave them under FISA.”

Turner, the GOP chairman of the House Intelligence Committee, testified that, in his opinion, the underlying text of the bill was adequate to curb future surveillance abuses by the FBI; that the abuses of the past had been the result of mistakes made by “rank-and-file” employees; and that the same mistakes could be reasonably avoided today by merely asking higher ranking officers to sign off before granting access to wiretaps of Americans’ calls and texts.

Throughout his testimony, Turner discussed the 702 program in terms that focused strictly on its use against terrorist organizations, at times implying that only the communications of Americans in direct contact with foreigners who “represent a national security threat to the United States” are swept up by the program.

In fact, no foreigner is required to have ties to terrorism or be suspected of a crime against the US to be considered a legitimate 702 target. Far less discerning, one of the stated purposes of the program is to gather information relevant to the “conduct of foreign affairs”—a phrase that legal experts contend is so vague as to apply to “almost any activity.”

What Is Section 702?

In the wake of 9/11, US president George W. Bush authorized the National Security Agency (NSA) to eavesdrop on Americans without court-approved warrants as part of the hunt for evidence of terrorist activity. A federal judge ruled the collection unconstitutional in 2006, as part of a lawsuit brought by the American Civil Liberties Union. (An appeals court later overturned the ruling without challenging the case’s merits.)

Rather than end the surveillance, Congress codified the program as Section 702 of the Foreign Intelligence Surveillance Act (FISA), granting itself some authority to enforce procedures ostensibly designed to limit the program’s impact on Americans’ civil liberties.

Section 702 explicitly prohibits the government from targeting Americans. The surveillance must instead focus on foreigners who are physically located overseas. Nevertheless, Americans’ communications are routinely swept up by the program.

While denying that it intentionally sets out to eavesdrop on its own citizens, once it has already done so, the US government’s position is that it now has a right to access these “legally collected” communications without a judge’s approval. In 2021 alone, the FBI conducted searches of communications intercepted under 702 more than 3.4 million times.

Last year, after acknowledging that hundreds of thousands of these searches were unlawful, the FBI said it had taken steps to curtail the number of queries carried out by its employees, reporting in 2022 as few as 204,000 searches.

It is impossible to count the number of Americans whose calls, emails, and texts are subject to surveillance under 702, the government claims, arguing that any attempt to reach an accurate figure would only further imperil the privacy of the Americans it surveils.

Congress is currently divided into two factions: Those that believe the FBI should be required to get a warrant before reading or listening to the communications of Americans collected under 702. And those who say warrants are too burdensome a requirement to impose on investigations of national security threats.

Judiciary Leaders Call Out FBI’s History of Abuse

Jim Jordan, the Republican chairman of the House Judiciary Committee, and a leading advocate for stronger privacy under 702 among conservatives, drew attention in his testimony Tuesday to the litany of surveillance abuses first reported by The Washington Post one year ago.

Court documents declassified and released by the FISA court last year found that the FBI had misused the 702 program more than 278,000 times, including, as The Post reported, against “crime victims, Jan. 6 riot suspects, people arrested at protests after the policing killing of George Floyd in 2020 and—in one case—19,000 donors to a congressional candidate.”

“The fundamental question, still, is if the FBI wouldn’t follow the procedures in place 278,000 times … are new requirements going to be enough to safeguard American’ liberties?” Jordan says. "When you have the history we have with this organization, relative to not following the rules, we think you need a separate but equal branch of the government to approve a warrant before you can query American citizens’ information.”

Jarrold Nadler—Jordan’s Democratic counterpart on the Judiciary—concurred, calling even more emphatically on Congress to “rein in abuse of FISA Section 702 authorities by the intelligence community.”

“Yes, there are already laws on the books to protect Americans from unauthorized government surveillance,” says Nadler. “But we know from our oversight efforts and the intelligence community’s own reporting that these laws are often disregarded and are at the very least inadequate to keep this powerful surveillance tool in check.”

The House Rules Committee is currently holding a hearing that will determine what the final text of the 702-reauthorization bill will look like and which amendments will be offered up for a vote on the House floor.

Both the House Judiciary and Intelligence committees are expected to offer up several amendments, with the latter aiming to impose new warrant requirements on the FBI prior to querying the 702 database for information on Americans. Watch the hearing below: