A view from DC: Congress' FISA Section 702 stalemate reveals a rocky road ahead

Around midnight last Thursday, things began to fall apart for U.S. House Speaker Mike Johnson, R-La. The embattled speaker had been gearing up to clear a familiar legislative hurdle but again found himself falling short on votes.

October will mark 25 years since the USA PATRIOT Act reformed the country's foreign intelligence authorities, adding controversial surveillance powers under Section 702 of the Foreign Intelligence Surveillance Act, with sunset provisions designed to make sure Congress would periodically reconsider whether the security benefits are worth the privacy tradeoffs.

At least six times since then, Congress has agonized over how and whether to extend the authorities, with legislative debates growing increasingly heated as the post-9/11 bipartisan consensus faded into history.

The actual contours of the law have evolved significantly over the decades. Much of FISA was made permanent in 2006, but the most controversial surveillance provisions continued to have expiration dates, a can for Congress to periodically kick down the road.

Each refrain of the FISA fight feels the same, but different. It is the same because it inevitably seems to draw to a last-minute crisis, with the intelligence community warning of disastrous consequences if it loses the authorities under Section 702. It is different because the political terrain shifts each time.

This time around, likely sensing the resistance from his Freedom Caucus wing of the Republican party, President Donald Trump put the stakes bluntly in a social media post, "I am willing to risk the giving up of my Rights and Privileges as a Citizen for our Great Military and Country."

As it happens, many House lawmakers were not so keen to make this tradeoff again. In the pre-dawn hours of 17 April, Johnson's attempts to facilitate a five-year reauthorization crumbled when a coalition of 20 dissenting Republicans joined most Democrats to block the reauthorization. As Punchbowl News put it, "On every issue in front of Congress, (Republicans seem) to be locked in a circular firing squad."

Instead, Congress passed a 10-day stop-gap measure, which expires 30 April, less than a week from today.

The coalition of legislators advocating for enhanced civil liberties protections under FISA make for strange bedfellows.

The far-right Freedom Caucus has focused its attention on calls for a warrant requirement, a reform that is viewed by congressional leadership and the intelligence committees as a fatal obstruction to the celerity of modern intelligence practices. Progressive Democrats and the Hispanic caucus, meanwhile, have been focusing more on the government's ability to acquire sensitive information from data brokers. This is likely a non-starter for Republicans. Like Hamlet, Johnson would rather bear those ills he has than fly to others that he knows not of.

The original Johnson-authored compromise attempted to introduce a new type of audit and a requirement for FBI attorney authorization for queries, but these were dismissed by reformers as fake warrants that merely codify the status quo without providing a substantive judicial check.

The updated text, released yesterday and titled the Foreign Intelligence Accountability Act, would reauthorize Section 702 for three years. The proposal includes targeted reforms to the provision that strengthen oversight and accountability. 

For starters, the bill proposes a monthly civil liberties review of every U.S. person query by the Civil Liberties Protection Officer within the Office of the Director of National Intelligence, which can then be escalated to the inspector general. Additionally, instead of allowing field supervisors to approve U.S. person queries, the update requires attorney approval.

It also mandates an update to the Foreign Intelligence Surveillance Court procedures allowing for specified members of Congress and staff to have access to "any proceeding" of the court and the review court. The language seems similar to the requirement in the current 2024 reauthorization, the Reforming Intelligence and Securing America Act, which allowed access for top-level Congress members, but the new text explicitly requires revocation of the existing procedures, which suggests Congress feels obstructed in the current implementation. 

The Comptroller General in the U.S. Government Accountability Office would also be given new authority to perform a technical audit of Section 702 targeting mechanisms to ensure, as implemented, they are "appropriately limiting" targeting "to non-United States persons located outside of the United States." The audit would result in a report to the intelligence committees within a year of enactment of the law. Finally, the bill would strengthen criminal liability for individual intelligence officers. FBI employees who "knowingly and willfully" violate querying procedures would face criminal prosecution.

Reportedly, the updated text has won some skeptics over.

Rep. Warren Davidson, R-Ohio, who wrote on social media, "Collectively, this set of reforms provides robust privacy protections for American citizens. Congress should bank this win and reauthorize Section 702. Then, we should swiftly begin gutting the unmitigated surveillance state left growing unchecked during these 702 fights."

Others remain unconvinced, including privacy-focused lawmakers like Sen. Ron Wyden, D-Ore., who extolled his colleagues not to "fall for fake reforms" in the new bill that amount to a "rubber stamp for Trump and Kash Patel to spy on Americans without a warrant," and Sen. Rand Paul, R-Ky., who reportedly will force the Senate to vote individually on a warrant amendment as a condition of agreeing to speed up consideration of the bill. 

Rep. Scott Perry, R-Pa., who used to chair the Freedom Caucus, also said the bill still doesn't go far enough. "I didn't take an oath to defend FISA," he wrote on social media. "I didn't take an oath to defend the intelligence community."

Bipartisan negotiating threads to reauthorize Section 702 are sparse, but Rep. Jim Himes, D-Conn., is keeping the door open to brokering a deal for the sake of common sense.

"Three months from now, if FISA 702 is dark and there’s a bomb in Grand Central, there will be very little doubt in my mind … that that occurred because we shut down our most important counterintelligence,” Himes told Politico, adding he doesn't blame Democratic colleagues' opposition to a clean extension, but "I just see with some granularity — actually, more granularity than pretty much anybody around here — what the risks are that we face."

As with so much on the Hill these days, FISA reauthorization will come down to the wire. Meanwhile, the battles are illustrative for predicting the remainder of this Congressional term. The same political tensions between and among the parties are reflected in other tech policy debates, including on AI, privacy, and children’s protections. 

The center cannot hold, and the fractures are multiplying.

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