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Senate passes two-year extension of surveillance law just after it expired

Senate Majority Leader Chuck Schumer (D-N.Y.) speaks to members of the media on Wednesday in Washington, D.C.  (Andrew Harnik)
By Charlie Savage and Luke Broadwater New York Times

WASHINGTON – The Senate early Saturday approved an extension of a warrantless surveillance law, moving to renew it shortly after it had expired and sending President Joe Biden legislation that national security officials say is crucial to fighting terrorism but that privacy advocates decry as a threat to Americans’ rights.

The law, known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA, had appeared all but certain to lapse over the weekend, with senators unable for most of Friday to reach a deal on whether to consider changes opposed by national security officials and hawks.

But after hours of negotiation, the Senate abruptly reconvened late Friday for a flurry of votes in which those proposed revisions were rejected, one by one, and early Saturday the bill, which extends Section 702 for two years, won approval, 60-34.

“We have good news for America’s national security,” Sen. Chuck Schumer, D-N.Y., the majority leader, said as he stood during the late-night session to announce the agreement to complete work on the bill. “Allowing FISA to expire would have been dangerous.”

In a statement, Attorney General Merrick Garland praised the bill’s passage, calling Section 702 “indispensable to the Justice Department’s work to protect the American people from terrorist, nation-state, cyber and other threats.”

Before final passage, the Senate rapidly voted down a series of amendments proposed by privacy-minded lawmakers. Approving any of them would have sent the bill back to the House, allowing the statute to lapse for a more significant period.

“Any amendment added to this bill at this moment is the equivalent of killing the bill,” warned Sen. Mark Warner, D-Va., the chair of the Intelligence Committee.

While the program has legal authority to continue operating until April 2025 regardless of whether Congress extended the law, the White House sent a statement to senators Friday warning them that a “major provider has indicated it intends to cease collection on Monday” and that another said it was considering stopping collection. The statement did not identify them, and the Justice Department declined to say more.

The statement also said that the administration was confident that the FISA court would order any such companies to resume complying with the program, but that there could be gaps in collection in the meantime – and if a rash of providers challenged the program, the “situation could turn very bad and dangerous very quickly.” It urged senators to pass the House bill without any amendments before the midnight deadline.

But Sen. Rand Paul, the libertarian-minded Kentucky Republican, rejected the rationale and said the Senate should be allowed to debate changes even if it would prompt a brief delay.

“This is an argument that has been forced upon us by the supporters of FISA who want no debate and they want no restrictions,” he said. “They want no warrants, and they want nothing to protect the Americans.”

In the end, the bill received the 60th vote it needed to pass just before midnight. But in a twist, after all the urgency, the Senate kept the vote open for more than 40 additional minutes to accommodate Sen. Marsha Blackburn, R-Tenn., who finally showed up in the nearly empty chamber and added a “no” vote.

The defeated amendments included a measure that would have required the government to get a warrant before viewing the contents of Americans’ communications swept up in the program. It was defeated, 42-50.

Privacy advocates have long sought some form of warrant requirement, which national security officials oppose, saying it would cripple the program’s effectiveness. A similar amendment in the House had failed just barely this week on a 212-212 tie vote.

The Senate also rejected a proposal to eliminate a provision added by the House that expands the type of service providers that can be compelled to participate in the program. The measure is aimed at certain data centers for cloud computing that the FISA court ruled in 2022 fell outside the current definition of which services the statute covers, according to people familiar with the matter.

Privacy advocates have warned that it is too broadly worded, leaving open the potential for abuses. Sen. Ron Wyden, D-Ore., criticized the provision as “horribly drafted, sweeping new surveillance authorities that we will surely regret.”

But Warner pledged to work with colleagues to “further refine” the definition in another bill later this year, and the amendment to strip the provision was defeated, 34-58.

And the Senate rejected a proposal by Paul to bar the government from buying personal information about Americans from data brokers if it would need a warrant to compel a company to turn over that information directly. The House last week passed a separate bill, titled the Fourth Amendment Is Not For Sale Act, containing that same measure.

Privacy advocates, who had spent more than a year pushing for a warrant requirement only to see the bill instead expand the reach of the surveillance program, expressed deep frustration. Among them was Elizabeth Goitein of the Brennan Center for Justice at New York University School of Law.

“Although some senators fought valiantly to protect Americans’ civil liberties, they could not overcome the barrage of false and misleading statements from the administration and surveillance hawks on the congressional intelligence committees,” she said. “This is a truly shameful episode in the history of the U.S. Congress, and sooner or later, the American people will pay the price.”

Section 702 allows the government to collect, from U.S. companies such as AT&T and Google, the messages of foreigners abroad who have been targeted for foreign intelligence or counterterrorism purposes without a warrant – even when they are communicating with Americans.

The idea is that in the internet era, foreigners’ communications are often handled by domestic companies. But the tool is controversial because the government also sweeps up messages of Americans to and from those foreign targets.

Civil libertarians in Congress have long raised concerns about the impact of Section 702 on Americans’ privacy rights. In recent years, they have been bolstered by the hard-right faction of Republicans that has closely aligned itself with former President Donald Trump’s hostility to the FBI.

The law traces back to a warrantless wiretapping program that President George W. Bush secretly created after the terrorist attacks of Sept. 11, 2001. It violated the Foreign Intelligence Surveillance Act of 1978, which requires warrants for national security wiretapping on domestic soil.

After the program came to light, Congress in 2007 legalized a form of it in a short-lived law called the Protect America Act, carving out an exception to FISA’s warrant requirement for wiretapping on American soil that targets foreigners abroad. Lawmakers enacted Section 702 the following year as a more enduring version, and extended it in 2012 and 2018.

Much of the debate about renewing it again has centered on the fact that under the current rules, intelligence analysts and FBI agents may search the raw database of Section 702 intercepts for Americans’ information. If there is a hit, then officials can read the private messages of Americans that were collected without a warrant and use it for investigations.

While there are strict rules for when such queries are permissible, in recent years FBI officials have repeatedly conducted searches that were later found to have violated those standards, including because they lacked sufficient justification or were too broadly defined. Problematic queries have included searches using the identifiers of a lawmaker, Black Lives Matter protesters and Jan. 6 Capitol riot suspects.

In response, the FBI has tightened its systems since 2021, and the bill codified many such restrictions into law.

The law had again been set to expire in December, but Congress voted to extend it until Friday to give itself more time to consider proposed changes. But the debate roiled Congress, especially in the often dysfunctional House, and plans to bring it up in the House collapsed repeatedly, leading to last-minute gamesmanship.

Before the drama in the Senate, the bill came back from another seeming breakdown a week earlier in the House. As lawmakers were preparing to vote on whether to bring up the bill, Trump urged supporters to “KILL FISA.”

Trump’s blast was part of his yearslong effort to stoke grievances about national security agencies. His dissatisfaction stems from an inspector general’s finding that the FBI botched applications for traditional FISA warrants to target a former campaign adviser as part of the investigation into ties between Trump’s 2016 campaign and Russia.

While that was a different kind of national security surveillance – traditional FISA requires warrants to target people on American soil – 19 hard-right Republicans blocked the House from taking up the Section 702 legislation.

Two days later, Speaker Mike Johnson revived it, cutting the extension to two years from five – meaning Trump would be in charge when it came up again if he won the 2024 election – and hard-right Republicans allowed the House to vote on the bill.

This article originally appeared in The New York Times.