EletiofeA Backroom Deal Looms Over Section 702 Surveillance Fight

A Backroom Deal Looms Over Section 702 Surveillance Fight

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Twice in the past decade, legislation limiting the United States government’s domestic surveillance powers sailed through the US House of Representatives. Attached to bills that would ultimately become law, both of these pro-privacy amendments were killed off in the final hours of consideration—erased each time in secret meetings held among a select group of congressional power brokers. Capitol Hill sources familiar with ongoing negotiations over a top US surveillance program fear House leaders may once again scrap popular civil-liberty-focused reforms.

Last week, House members became aware that closed-door discussions were ongoing at the highest levels concerning the latest pro-privacy reforms to gain widespread legislative support. Public reporting on the discussions, first disclosed by Politico, set off a firestorm of speculation over whether another deal may have been quietly struck to prolong a domestic surveillance program no longer assumed to have the support of a majority of Congress.

Sources with knowledge of ongoing negotiations over the future of Section 702—a controversial but pivotal US foreign surveillance program—say a host of pro-privacy reforms, including new warrant requirements for obtaining commercially available data, have gained serious traction among an anomalous coalition of progressives and conservatives otherwise at odds on most matters. WIRED granted these sources anonymity because they were not authorized to speak publicly about ongoing negotiations.

A source with knowledge of the 702 fight tells WIRED that last week House speaker Mike Johnson and House majority leader Steve Scalise met privately about drafting a new bill to reauthorize the program—an attempt to somehow merge existing bills introduced separately in December by the House Judiciary and Intelligence committees. The history of genuine privacy legislation being killed off in these closed-door sessions immediately sparked concerns among reformers.

“This is the room where we get fucked,” one civil liberties expert tells WIRED.

Senior aides on the Hill, working from offices on both ends of the surveillance fight, say there is a 90 percent agreement among the two bipartisan factions. It is the final 10 percent—composed almost entirely of the warrant issue—on which neither is willing to budge.

Several aides attributed the drawn-out nature of the fight, at least in part, to the relative naivete of the House speaker on national security matters, saying that, with little experience in the area, Johnson had not previously had the opportunity to be captured by the intelligence community—powerful interests accused by congressional staffers of routinely deploying “fear tactics” to defend surveillance operations plagued by regular error and abuse.

Johnson’s lack of any intelligence background, staffers say, would have likely increased his dependence on House intelligence staffers, who, while cultivating a sense of awe due to their access to national secrets, routinely behave as ambassadors between the spy agencies and regular congressional staff.

House members remained in the dark Monday morning as to the details of Johnson and Scalise’s purported plan for Section 702, and whether the compromise—potentially to arrive later this week—would include popular measures aimed at ending a prominent data broker loophole, through which US spy agencies are known to purchase information on Americans for which a warrant is typically required.

Johnson, notably, previously voted in favor of legislation that would have drastically reformed the 702 program with a slew of privacy protections.

Despite the uncommon bipartisan support for reforming Section 702, sources familiar with the negotiations say pro-privacy amendments have a history of dying in backroom deals. An amendment proposed last summer to ban the US military from tracking Americans’ cell phones without a warrant was snuffed out in a closed-door session despite winning widespread support in the House. Yet another amendment—which would have done little to interfere with the federal government’s domestic surveillance work—likewise gained support in the House two years ago. But even this half-measure ultimately found itself on the chopping block after negotiations were moved into rooms open to neither the public nor the press.

The effectiveness of this latest round of pro-privacy bipartisanship came as a surprise to many in the national security establishment. Congressional sources say that a year ago, only a feeble resistance to reauthorizing the surveillance was anticipated. Even its biggest detractors acknowledge that the 702 program is likely vital to the US national defense, crucial to investigations of terrorist threats, acts of espionage, and the constant deluge of cyberattacks aimed at US companies and national infrastructure.

To the contrary, a serious challenge to continuing the program under status quo conditions did arise in the fall of 2023. Compounded by the sudden fight over the House speakership in October, the smooth reauthorization of Section 702 became a distant fantasy. Working groups established in the House to find common ground eventually disintegrated, leaving only two discernible factions in their wake—one that believes the FBI should apply for warrants before accessing US calls, texts, and emails intercepted by US spies; and another that says warrants are too much of a burden for investigators.

What’s counted toward compromise since then might best be described as a “rounding error.” Lawmakers opposed to warrants agreed in December that the FBI should obtain a warrant before accessing 702 data in investigations that lack a foreign component. But of the hundreds of thousands of Americans queried by the bureau each year, only a small fraction fall into this category—fewer than 1 percent, according to some civil liberties experts.

The Section 702 program was last extended in December until April, when certifications issued by the Foreign Intelligence Surveillance Court expire, ending a requirement that American companies cooperate with the intelligence community’s wiretap demands. Some experts have forecast that the intelligence community may begin to apply for new certifications as early as next month, allowing the surveillance to continue uninterrupted for an additional year, even if Congress fails to act.

It is often the last resort of congressional leaders to block privacy-enhancing bills from reaching the floor for a vote—even if the result is that a surveillance program goes suddenly unauthorized by Congress. Letting a program expire is often preferable to allowing a vote to take place if it runs the risk of enshrining unwanted restrictions in the law.

Expired surveillance programs can find ways to carry on. US lawmakers introduced bills twice last year, for instance, with measures aimed at banning FBI surveillance techniques technically rendered unlawful four years after Congress failed to reauthorize Section 215: a package of surveillance tools provided by the 9/11-era Patriot Act legislation.

House leaders—Democrats at the time—faced similar popular opposition to continuing the 215 surveillance under status quo conditions. Rather than risk a vote that might permanently kill the programs, it was simply allowed to expire. Since then, the FBI has continued availing itself of the surveillance techniques, year after year, “grandfathering” in a bevy of new cases.

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