The Future of America’s Biggest Spy Program Is Being Decided Right Now
The US Congress will this week decide the fate of Section 702, a major surveillance program that will soon expire if lawmakers do not act. WIRED is tracking the major developments as they unfold.
The United States government, like its rivals in Moscow and Beijing, has poured untold millions of dollars into quietly turning the phones and internet browsers of its own citizens into a powerful intelligence-gathering tool. Shadowy deals between federal agencies and commercial data brokers have helped the US intelligence system to amass a “large amount” of what its own experts term “intimate information” on Americans.
Most US citizens are in the dark as to the true scope and scale of the surveillance they’re under.
House speaker Mike Johnson—whose brief tenure as speaker has been roiled by an ongoing debate over domestic intelligence abuses—previously supported several privacy measures that, now in power, he is working to defeat, including strong new limits on the government’s access to private data.
This week, Johnson is working to resolve the lingering issue of reauthorizing Section 702, a key foreign surveillance program authorized by Congress to target terrorists, cybercriminals, and narcotics traffickers overseas. The program is set to officially expire on April 19.
Congressional sources tell WIRED that a vote to salvage the program could come as early as Thursday, following a series of scheduled briefings on Tuesday and Wednesday between lawmakers and intelligence officials, as well as a number of smaller votes that may significantly modify the terms of the program for years to come.
The focus of privacy advocates has turned almost entirely to an amendment that aims to force the FBI and other agencies to apply for a warrant before accessing the communications of Americans incidentally captured by the US under the 702 program.
Thursday’s vote over the 702 program is at least the third scheduled by the speaker since December. As Johnson has in each case waited until the final moment to delay the vote, a fog of uncertainty surrounds the whole of the process. Privately, lawmakers are discussing next steps should the speaker decide to simply let the program expire, avoiding new statutory limits on the government's most-prized surveillance weapon.
To keep pace with a situation that is sure to evolve rapidly over the next 48 hours, WIRED will update this article with the latest details as they become available. See below for the latest developments.
RIP, Section 702 Reauthorization Vote
Here's our full story on the 702 vote failure, which concludes this coverage. Until next time!
House Blocks Section 702 Reauthorization Vote
Speaker Johnson's third and latest attempt to send a FISA bill to the floor has failed after a defection by 19 members of his own party, a group closely aligned with former president Trump.
The defectors rebuked Johnson over his push to reauthorize the program without privacy reforms passed by the House Judiciary Committee, which has jurisdiction over FISA. Johnson came out this week against an amendment requiring the FBI to obtain a warrant before searching 702's raw data for Americans' communications.
While there was some trepidation over the vote following yesterday's Rules Committee hearing, things quickly unraveled this morning after House leaders woke up to find that, in the early hours of the morning, Trump had called on Republicans to “KILL FISA.”
What Kind of “Special Treatment” Is Congress Gifting Itself?
The 702 debate has been rife with misinformation all year. But anyone who was hoping to get their facts straight from the horse's mouth yesterday probably did themselves a disservice.
Viewers who tuned in to hear congressional leaders discuss the wiretap program may have walked away less informed after a particular exchange between the House intel chairman, Mike Turner, and Tom Massie, a Rules Committee member.
“What special treatment do members of Congress get in this FISA bill?” Massie asked.
Turner responded: “There are no special treatments.”
There are, in fact, special treatments.
Massie is referring to three provisions in the 702 bill that would grant members of Congress special rights if the FBI tries to conduct a search of the wiretap database using a lawmaker's personal information like an email address or phone number.
Two of these provisions require congressional leaders and the member targeted by the search to be notified when a search is performed. Conversely, the FBI would almost never notify ordinary Americans (anyone who is not a member of Congress) about searching a classified database for information about them.
Turner did acknowledge the notification requirement in a later exchange with Massie. But he seemed to ignore the existence of a third provision altogether; one that requires the FBI to ask lawmakers for permission in certain cases—a privilege the bill extends to members of Congress and members of Congress alone.
This provision requires the FBI to get consent before a search if the lawmaker is considered a victim or target of a threat. Without their permission, the FBI can only proceed if a deputy director signs off on the search and declares “exigent circumstances.”
These victim-focused searches are routine in cases of Americans being targeted by foreign cyber threats. Reportedly, information gathered from these searches are vital to understanding the tradecraft of cyber-actors and mitigating future threats. Even the lawmakers hoping to force the FBI to submit to judicial review before accessing US wiretaps agree this particular use of the program is too valuable to be hindered by a warrant requirement.
In response to further questioning, Turner cited past abuses of the FISA system to justify the members-only privileges, pointing to unlawful surveillance against a Trump campaign staffer in 2016.
Notably, however, none of the new 702 provisions extend to presidential candidates or campaign staff members. What’s more, the surveillance of the Trump campaign did not involve the 702 program, but a different part of FISA entirely.
Trump Chooses Chaos
Donald Trump has lobbed a hand grenade at House speaker Mike Johnson's plans to reauthorize the Section 702 program, posting around a quarter to two this morning "KILL FISA" from his Truth Social account.
House lawmakers are slated to cast a precursory vote this afternoon on a rule to govern how the actual vote tomorrow on the program goes down. (A rule determines which amendments will get considered, how long lawmakers will be permitted to debate, etc.)
It’s possible that at least some Republican lawmakers perceived Trump's "KILL FISA" post as a command. It’s also possible they vote in sufficient numbers this afternoon to reject the rule, thus canceling tomorrow's vote.
Johnson could still send the bill to the floor at this point, but he’d need a two-thirds majority for it to pass.
Punchbowl reporter Jake Sherman reported this morning that Johnson had reached out to Republicans to “be clear about what happens if we fail this week.” Johnson claims the Senate is preparing a “clean extension” of the 702 program. If the House fails to pass its own reauthorization, he’ll be “forced to accept” the Senate’s version, he reportedly said. The pressure is mounting on Johnson to salvage the program before it sunsets next week. But he cannot technically be “forced” to accept any bill.
Johnson added that Congress has no choice but to act because it “cannot allow this vital national security tool to go dark.”
April 19 is a much-hyped deadline for reauthorizing the 702 program; however, the Justice Department has already secured a court order permitting it to extend the 702 program into 2025. Nothing that Congress does, or does not do, will bring about the program’s end. At least, not this year.
702's Next Steps
The House Rules Committee has reported a “special rule” that will be voted on by the full House of Representatives on Wednesday afternoon. Assuming the rule is approved by the House on Wednesday, each amendment will receive its own standalone vote on Thursday, before all members vote on the 702 bill, in its entirety, as one package.
A rule determines how much debate time is allowed before a vote and which amendments will be offered up for consideration.
The report shows that, among other amendments, the House will consider whether to require the FBI to obtain a warrant before conducting “searches of US person communications in the FISA database”—the stickiest point in the negotiations between privacy and security hawks, which have been ongoing now for more than six months.
The amendment, introduced by Republican Andy Biggs, includes several exceptions designed to permit the FBI to freely investigate cyberattacks and delay applying for a warrant when investigators discover an imminent threat of death or bodily harm.
WIRED's coverage of Section 702's future will continue on Wednesday.
House Intel Chair Fires Back at Warrant Seekers
“We are here,” representative Mike Turner told the House Rules Committee, “because the intelligence community failed us. The FBI failed us. The intelligence community failed to properly police themselves, and they abused the tools that we gave them under FISA.”
Turner, the GOP chairman of the House Intelligence Committee, testified that, in his opinion, the underlying text of the bill was adequate to curb future surveillance abuses by the FBI; that the abuses of the past had been the result of mistakes made by “rank-and-file” employees; and that the same mistakes could be reasonably avoided today by merely asking higher ranking officers to sign off before granting access to wiretaps of Americans’ calls and texts.
Throughout his testimony, Turner discussed the 702 program in terms that focused strictly on its use against terrorist organizations, at times implying that only the communications of Americans in direct contact with foreigners who “represent a national security threat to the United States” are swept up by the program.
In fact, no foreigner is required to have ties to terrorism or be suspected of a crime against the US to be considered a legitimate 702 target. Far less discerning, one of the stated purposes of the program is to gather information relevant to the “conduct of foreign affairs”—a phrase that legal experts contend is so vague as to apply to “almost any activity.”
What Is Section 702?
In the wake of 9/11, US president George W. Bush authorized the National Security Agency (NSA) to eavesdrop on Americans without court-approved warrants as part of the hunt for evidence of terrorist activity. A federal judge ruled the collection unconstitutional in 2006, as part of a lawsuit brought by the American Civil Liberties Union. (An appeals court later overturned the ruling without challenging the case's merits.)
Rather than end the surveillance, Congress codified the program as Section 702 of the Foreign Intelligence Surveillance Act (FISA), granting itself some authority to enforce procedures ostensibly designed to limit the program's impact on Americans’ civil liberties.
Section 702 explicitly prohibits the government from targeting Americans. The surveillance must instead focus on foreigners who are physically located overseas. Nevertheless, Americans’ communications are routinely swept up by the program.
While denying that it intentionally sets out to eavesdrop on its own citizens, once it has already done so, the US government’s position is that it now has a right to access these “legally collected” communications without a judge’s approval. In 2021 alone, the FBI conducted searches of communications intercepted under 702 more than 3.4 million times.
Last year, after acknowledging that hundreds of thousands of these searches were unlawful, the FBI said it had taken steps to curtail the number of queries carried out by its employees, reporting in 2022 as few as 204,000 searches.
It is impossible to count the number of Americans whose calls, emails, and texts are subject to surveillance under 702, the government claims, arguing that any attempt to reach an accurate figure would only further imperil the privacy of the Americans it surveils.
Congress is currently divided into two factions: Those that believe the FBI should be required to get a warrant before reading or listening to the communications of Americans collected under 702. And those who say warrants are too burdensome a requirement to impose on investigations of national security threats.
Judiciary Leaders Call Out FBI’s History of Abuse
Jim Jordan, the Republican chairman of the House Judiciary Committee, and a leading advocate for stronger privacy under 702 among conservatives, drew attention in his testimony Tuesday to the litany of surveillance abuses first reported by The Washington Post one year ago.
Court documents declassified and released by the FISA court last year found that the FBI had misused the 702 program more than 278,000 times, including, as The Post reported, 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.”
“The fundamental question, still, is if the FBI wouldn't follow the procedures in place 278,000 times ... are new requirements going to be enough to safeguard American’ liberties?” Jordan says. "When you have the history we have with this organization, relative to not following the rules, we think you need a separate but equal branch of the government to approve a warrant before you can query American citizens' information.”
Jarrold Nadler—Jordan's Democratic counterpart on the Judiciary—concurred, calling even more emphatically on Congress to “rein in abuse of FISA Section 702 authorities by the intelligence community.”
“Yes, there are already laws on the books to protect Americans from unauthorized government surveillance,” says Nadler. “But we know from our oversight efforts and the intelligence community's own reporting that these laws are often disregarded and are at the very least inadequate to keep this powerful surveillance tool in check.”
The House Rules Committee is currently holding a hearing that will determine what the final text of the 702-reauthorization bill will look like and which amendments will be offered up for a vote on the House floor.
Both the House Judiciary and Intelligence committees are expected to offer up several amendments, with the latter aiming to impose new warrant requirements on the FBI prior to querying the 702 database for information on Americans. Watch the hearing below:
Top Experts Say House Speaker’s Bill Significantly Expands US Surveillance
Few attorneys have ever appeared before the secret surveillance court overseeing the Section 702 program. Three of them just released their own analysis of the reauthorization bill Speaker Johnson is putting up for a vote.
The bad news, they say, is that the bill still dramatically increases the number of companies that the US government can target under Section 702. This is despite a few “marginal” improvements to the text since it was last introduced.
Marc Zwillinger, one of only a handful of lawyers to ever serve as an advisor to the Foreign Intelligence Surveillance Court (FISC), first wrote about the language in December, accusing the House Intelligence Committee (or HPSCI) of attempting to “significantly expand the government’s authority under FISA 702” by broadening the scope of businesses whose cooperation the government can compel.
Emails between House staff members obtained by WIRED show that HPSCI was prepared to introduce the same language in February before its chairman, Mike Turner, took steps to ensure the vote was called off.
On Tuesday, Zwillinger and coauthors Steve Lane and Jacob Sommor described the latest version of the bill as a “marginal improvement” but, nevertheless, “problematic.” The main addition to the text is a list that excludes certain categories of businesses from being compelled to cooperate with 702 demands, including "dwellings, restaurants, and community facilities."
Zwillinger notes that this change may reduce the number of businesses the government can target, but adds the need to include such a list at all only serves to demonstrate how the overall breadth of the program is being greatly expanded.