Senate advances bill on FISA Section 702 reauthorization

The Senate is moving forward on a vote to reauthorize a controversial program that allows warrantless surveillance of foreign “targets.” Before voting on the reauthorization bill, senators had to vote on a cloture motion to begin voting. The cloture motion passed 67–32, just one day ahead of the program’s expiration.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire at midnight on April 19th, a deadline some senators emphasized as they urged their colleagues to vote in favor of reauthorization. “It’s hard to overstate either the importance — the gravity — of allowing it to sunset, yet we are 36 hours away from that happening,” Sen. Mark Warner (D-VA) said on the Senate floor. “I understand that some of my colleagues would like to amend the House passed bill and continue the process of debate and negotiation. Listen, there are things I’d like to change in the House bill as well. The choice before us as we think about amendments — this is the case — is pass this bill, or allow 702 to sunset.”

The House bill Warner was referring to, which passed on April 12th after three failed attempts, lacks an amendment that would require federal intelligence agencies to obtain a warrant before accessing Americans’ data. A bipartisan coalition of House members supported the amendment, which was narrowly defeated on a 212–212 vote. 

Earlier in March, Sen. Dick Durbin (D-IL) introduced a companion warrant requirement in the Senate. (The Durbin amendment differs slightly from the failed House amendment in that it would require intelligence agencies to obtain FISA Title I orders or warrants before accessing Americans’ communications under Section 702 but not before querying for those communications.) Punchbowl News reports that the Biden administration has begun circulating a letter to senators claiming that the Durbin amendment “threatens national security.”

Although Warner urged the Senate to move quickly and without the warrant requirement amendment due to a looming expiration date, Section 702 would still be in place for another year even if the Senate votes against reauthorization. On April 5th, the FISA court granted a government request authorizing the program until April 2025. 

“Under the statute, any ongoing activities can continue until the certification expires, which would be April 5th of next year,” Kia Hamadanchy, senior federal policy counsel at the American Civil Liberties Union, told The Verge. “It’s what I like to call a zombie certification, because the law is expired but the certification is ongoing.”

A separate amendment introduced by Reps. Mike Turner (R-OH) and Jim Himes (D-CT) expanding the definition of “electronic communications service (ECS) provider” did make it into the bill. Under the new amendment, ECS providers are now defined as “any service provider” that has “access to equipment that is being or may be used to transmit or store wire or electronic communications.” 

The White House has expressed support for the Turner-Himes amendment. On April 17th, National Security Advisor Jake Sullivan urged the Senate to “reject mischaracterizations” of the amendment, which critics have said effectively turns Americans into spies for the government.

“It allows the government to force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government’s behalf,” Sen. Ron Wyden (D-OR) said in a statement after the House bill passed. “That means anyone with access to a server, a wire, a cable box, a wifi router, or a phone. It would be secret: the Americans receiving the government directives would be bound to silence, and there would be no court oversight.”

“I think the amendment could have been drafted better,” Warner said on the Senate floor before referencing a letter from Attorney General Merrick Garland pledging to interpret the amendment narrowly. “In that letter, the Attorney General says, and I quote, it would be unlawful under Section 702 to use the modified definition of ECSP [electronic communication service provider] to target any entity inside the United States, including, for example, any business, home, or place of worship.”

If reauthorized, Section 702 will be in place until 2026.