Section 702 Surveillance Reauthorization May Get Slipped Into ‘Must-Pass’ NDAA

Rumors are rampant on Capitol Hill about an effort said to be underway by US congressional leaders to salvage a controversial surveillance program—a plan that sources say may include slipping a last-minute provision into a “must-pass” defense authorization bill.

Republican and Democratic senior aides tell WIRED that word of private talks between the party leaders began to leak late last week, sparking concerns that House speaker Mike Johnson and Senate majority leader Chuck Schumer were mounting a last-ditch effort to rescue the program, known as Section 702, without the support of their rank-and-file members.

Neither Schumer nor Johnson have responded to requests for comment.

The 702 program—so named for its statutory source, Section 702 of the Foreign Intelligence Surveillance Act (FISA)—allows the government to warrantlessly surveil the communications of foreign citizens “reasonably believed” to be overseas. While intelligence analysts cannot target legal US residents, they can and often do acquire the communications of Americans in contact with foreign surveillance targets. Section 702 targets are not limited to terrorists and criminals, and may include, for example, foreign officials, diplomats, and journalists—anyone whose calls, texts, or emails are believed to have intelligence value.

The 702 statute is set to expire at the end of the year, though surveillance under the program, obtained through the compelled cooperation of US telecoms, could technically continue until April.

By week’s end, top congressional leaders are expected to present the final text of the National Defense Authorization Act (NDAA), a massive bill that directs the Pentagon’s annual funding and one of only a few bills that lawmakers cannot afford to let die. Amending the bill to extend the Section 702 program would force members into an up-or-down vote with limited debate and no opportunity to omit any unwanted, last-minute changes.

The House and Senate passed their own versions of the NDAA this summer, and a conference of top lawmakers had been tasked with consolidating the two bills. Currently, however, only a few top lawmakers know what the bill’s final text will say. The remaining conferees expect to receive a copy of the NDAA as early as Wednesday, but may have less than a day to parse what is typically over 1,000 pages of text. Party leaders will expect at least half of the conference to sign off on the bill quickly and send it to the House and Senate floor for a vote.

House majority leader Steve Scalise and House minority leader Hakeem Jeffries did not respond to WIRED’s requests for comment, nor did any senior members of the House and Senate armed services committees.

Republican staffers tell WIRED that extending the 702 program in this manner will almost certainly ignite another major quarrel in the House, where Republicans with considerable sway—including Jim Jordan, chairman of the House Judiciary Committee, and Matt Gaetz, who successfully ousted former House speaker Kevin McCarthy in October—are fiercely opposed to reauthorizing the program without a slew of new privacy safeguards.

An unlikely coalition of Republican and Democratic lawmakers was formed this year to oppose the intelligence community’s effort to obtain a clean reauthorization of the 702 program, which has been plagued by years of internal abuse at the National Security Agency and Federal Bureau of Investigation. The program’s critics have put up a laundry list of potential reforms, many of which are vehemently opposed by the White House and intelligence community at large. A chief demand of the Republicans, for example, has been to automatically strip the security clearance of any federal employee caught abusing 702 data.

A source familiar with the White House’s goals for the program tells WIRED it has encouraged Congress throughout the year to discuss potential privacy-enhancing reforms, while drawing a “red line” at demanding that the FBI obtain warrants before accessing raw 702 data for national security investigations. The source adds that the White House would be open, though, to discussing a warrant requirement for domestic criminal investigations, a recommendation made earlier this year by the president’s own intelligence advisory board.

Oversight officials on the congressional intelligence committees did not respond on Monday to inquiries from WIRED. A Democratic spokesperson for the House Intelligence Committee said its ranking member, Jim Himes, was unable to comment, but says a failure to reauthorize Section 702 by year’s end would prove to be a “disaster for national security” and a lost opportunity for meaningful reform.