The Senate passed a controversial extension of the federal government’s warrantless spying powers just after a midnight deadline on Friday over objections from Democrats and Republicans who opposed the incidental collection of US citizens’ data as part of the authority.
In a 60-34 vote, Democrats and Republicans voted to reauthorize Title VII of the Foreign Intelligence Surveillance Act (FISA) until 2026, sending the legislation to President Biden’s desk for a signature.
The White House issued a statement in strong support of the legislation, called the Reforming Intelligence and Securing America Act, before it passed the House last week in a 273-147 bipartisan vote.
The FISA authority was set to expire on April 19, which proponents had warned would end critical intelligence-gathering efforts through a provision known as Section 702.
Initially enacted in 2008, the national security provision permits US intelligence agencies to surveil communications and other data emitted by foreigners with potential ties to terrorism.
But in sweeping up that information from US service providers like Google and AT&T, critics point out that any Americans’ communications may also be obtained without a warrant.
Senators from both parties submitted amendments to address that loophole and others, but each was voted down on a bipartisan basis. Intelligence Committee chairman Mark Warner (D-Va.) nevertheless agreed to work through some of their concerns in subsequent legislation.
House Speaker Mike Johnson (R-La.) and House Intelligence Committee chairman Mike Turner (R-Ohio) rejected criticisms of the intelligence program, pointing to 56 reforms included in the reauthorization bill passed by the House that would prevent abuses by the FBI in querying the Section 702 database for Americans’ data.
Those reforms included restrictions on FBI queries of the database that require higher levels of approval to protect national security and avoid wading into political disagreements — as well as harsher penalties for officials who fail to comply with those guidelines.
Former President Donald Trump had called on GOP lawmakers to “KILL FISA” before an initial House vote, though the FBI abuses that led to the improper surveillance of his 2016 campaign aide Carter Page did not fall under Section 702.
After a failed attempt to extend the spying authority for five years, House Republicans reduced the timeframe to two years — meaning Section 702 will need to be reauthorized halfway through the next US presidential term of office.
Sen. Ron Wyden warned before its passage that the House measure would expand the federal government’s ability to spy on Americans beyond even its current authority.
“The legislation coming from the House gives the government unchecked authority to order millions of Americans to spy on behalf of the government,” Wyden (D-Ore.) said in a floor speech last week.
“It says that the government can force cooperation from, ‘any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications,’” the privacy-minded lawmaker revealed.
“That means anyone with access to a server, a wire, a cable box, a Wi-Fi router, a phone, or a computer,” Wyden added. “These people are not just the engineers who install, maintain and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings.
“If this provision is enacted, the government could deputize any one of these people against their will, and force them to become an agent for Big Brother.”
Attorney General Merrick Garland disputed the claim in a Thursday letter to Senate leaders, arguing that demands of electronic communication service providers had been “narrowly tailored,” according to a copy of the missive shared by Politico.
“Don’t be fooled,” Wyden lashed out on X in response. “DOJ does not deny that the provision vastly expands how many AMERICANS AND AMERICAN BUSINESSES can be forced to spy for the government.”
Wyden and Sen. Josh Hawley (R-Mo.) submitted an amendment to counter that, along with another from Sen. Roger Marshall (R-Kan.) to allow for senior political appointees to oversee the querying abilities of the Section 702 database.
Sen. Mike Lee (R-Utah) offered a separate amendment to reign in abuses related to the submission of evidence at the Foreign Intelligence Surveillance Court, which allowed the FBI to surveil the Trump campaign. All those amendments failed to pass.
A House amendment forcing intelligence gatherers to obtain a warrant for Americans’ data failed by virtue of a deadlocked 212-212 vote. A similar amendment introduced in the Senate by Majority Whip Dick Durbin (D-Ill.) also failed.
Rep. Warren Davidson (R-Ohio) authored a separate bill to prohibit federal agencies’ expanded ability to collect or purchase US consumers’ information from third-party data brokers.
That bill, the Fourth Amendment Is Not For Sale Act, was originally introduced by Wyden in 2021 — and passed the House in a 219-199 vote Wednesday.
The libertarian-leaning Sen. Rand Paul (R-Ky.) submitted the Davidson bill as yet another amendment to the Senate’s FISA vote — but it too failed to pass.
It’s unclear whether the House bill will receive a separate vote in the Senate at a later date.
