On Thursday, January 18, the Senate voted 65 to 34 to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which was set to expire on last week. The bill renews a key surveillance authority for the National Security Agency (NSA) for six more years enabling warrantless “backdoor searches” on the private digital communications of U.S. citizens.
Unsurprisingly, President Donald Trump immediately signed the bill into law the next afternoon, just hours before Congress failed to avert a government shutdown.
Earlier in the week, a group of senators led by Senators Rand Paul (R-KY) and Ron Wyden (D-OR) had threatened to filibuster the bill, but lawmakers narrowly managed to accrue the 60 votes necessary to block the attempt.
The vast government surveillance activity that the bill has extended until 2023 traces back to a once-secret program created by the George W. Bush administration following the terrorist attacks of Sept. 11, 2001. Congress first legalized it in 2008 by enacting Section 702 of the FISA Amendments Act, after the administration’s secret warrantless wiretapping was made public. It was last extended by Congress without any changes in 2012.
Section 702 allows the US government to gather information from foreigners overseas, including emails, texts, and phone records, without a warrant by eavesdropping on massive amounts of digital communications via American companies such as Microsoft, Facebook, Verizon, and Google — even when those foreign targets communicate with Americans. This results in the incidental bulk collection of Americans’ wholly domestic private communications with few safeguards.
Among concerns raised by critics is that the bill creates a path for the government to resume controversial “about” surveillance — a system for collecting data that mentions a surveillance target, even if it is not sent to or from a target.
A bipartisan coalition of lawmakers had pushed to impose significant privacy limits and warrant requirements on queries for Americans’ information swept up by government surveillance. Unfortunately that amendment was rejected, and the House voted to extend the post-9/11 program without any changes.
Senator Mitch McConnell (R-KY), the Senate majority leader, then used a procedural maneuver to prevent similar amendments that proposed reform from being put to a vote in the Senate.
The Senate approved Mr. McConnell’s move on Tuesday, clearing the path for the bill’s final passage on Thursday. In the House, 55 Democrats had joined 178 Republicans in rejecting the reform amendment. In the Senate, 19 members of the Democratic caucus joined 41 Republicans in approving Sen. McConnell’s move.
The bill does impose a limited new warrant requirement for FBI agents to read any emails of an American who is already the subject of an open criminal investigation. But that requirement is so narrowly written that it would not apply to the overwhelming majority of such searches, including national-security investigations and assessments of criminal tips before an investigation is opened.
A 2016 report had revealed that the NSA collected more than 151 million records of Americans’ phone calls in 2015 alone.
In response to Thursday’s “failure”, the Electronic Frontier Foundation (EFF) said that it will continue to challenge NSA mass spying in court.
“This is a long-abused law marketed as targeting foreigners abroad but which—intentionally and by design—subjects a tremendous amount of our Internet activities to government review, as they pass through key Internet checkpoints, and as they are stored by providers like Google and Facebook,” it said.
“Ultimately, the NSA uses Section 702 to sweep in and retain the communications of countless non-suspect Americans. “
The American Civil Liberties Union (ACLU) also outlined its opposition to the bill, saying it “risks codifying illegal practices that have been used to collect purely domestic communications,” and “will also allow warrantless backdoor searches of Americans’ information to continue largely untouched, imposing a warrant requirement only in cases of an established criminal investigation.”