For the third time since December, House Speaker Mike Johnson has failed to wrangle support for reauthorizing a critical US surveillance program, raising questions about the future of a law that compels certain businesses to wiretap foreigners on the government’s behalf.
Johnson lost 19 Republicans on Tuesday in a procedural vote that traditionally falls along party lines. Republicans control the House, but only by a razor-thin margin. The failed vote comes just hours after former US president Donald Trump ordered Republicans to “Kill FISA” in a 2 am post on Truth Social, referring to the Foreign Intelligence Surveillance Act, under which the program is authorized.
The Section 702 surveillance program, which targets foreigners overseas while sweeping up a large amount of US communications as well, is set to sunset next week, on April 19. The program was extended by four months in late December following Johnson’s first failed attempt to hold a vote.
Congressional sources tell WIRED they have no idea what the next steps will be.
The program itself will carry on into the next year, regardless of whether Johnson manages to muster up another vote in the next week. Congress does not directly authorize the surveillance. Instead, it allows the US intelligence services to seek “certifications” from a secret surveillance court on a yearly basis.
The Justice Department applied for new certifications in February. Last week, it announced they’d been approved by the court. The government’s power to issue new directives under the program without Congress’s approval, however, remains in question.
The certifications, which are only required due to the “incidental” collection of US calls, generally permit the program’s use in cases involving terrorism, cybercrime, and weapons proliferation. US intelligence officials have also touted the program as crucial in combating the flood of fentanyl-related substances entering the US from overseas.
The program remains controversial due to a laundry list of abuses committed primarily at the Federal Bureau of Investigation, which maintains a database that holds a portion of the raw data collected under 702.
Although the government says it only “targets” foreigners, it has acknowledged collecting a large amount of US communications in the process. (The actual amount, it says, is impossible to calculate.) Nevertheless, it claims that once those communications are in the government’s possession, it is constitutional for federal agents to review those wiretaps without a warrant.
An unlikely coalition of progressives and conservative lawmakers formed last year in a push to end these warrantless searches, many of the Republicans involved vocal critics of the FBI following its misuse of FISA to target a Trump campaign staffer in 2016. (The 702 program, which is only one part of FISA, was not implicated in that particular controversy.)
Privacy experts have criticized proposed changes to the Section 702 program championed by members of the House Intelligence Committee, as well as Johnson, who had previously voted in favor of a warrant requirement despite now opposing it.
“It seems Congressional leadership needs to be reminded that these privacy protections are overwhelmingly popular,” says Sean Vitka, policy director at Demand Progress, a civil liberties-focused nonprofit. “Surveillance reformers remain willing and able to do that.”
A group of attorneys on Tuesday—among the few to ever present arguments before the Foreign Intelligence Surveillance Court—said in a statement that an amendment offered up by the Intel committee risked dramatically increasing the number of US businesses forced to cooperate with the program.
Declassified filings released by the FISA court last year revealed that the FBI had misused the 702 program more than 278,000 times, including, as reported by The Washington Post, against “crime victims, Jan. 6 riot suspects, people arrested at protests after the policing killing of George Floyd in 2020 and—in one case—19,000 donors to a congressional candidate.”
James Czerniawaski, a senior policy analyst at Americans for Prosperity, a Washington, DC, think tank pushing for changes to Section 702, says that despite recognizing its value, it remained a “troubled program” in need of “significant and meaningful reforms.”
“The outcome of today was completely avoidable,” he says, “but it requires the Intelligence Community and its allies to recognize that its days of unaccountable and unconditional spying on Americans are over.”