Congress Votes to Extend Warrantless Surveillance Program
This morning, the House passed the National Defense Authorization Act (NDAA) which included an extension of FISA Section 702 surveillance authorities. This is the controversial warrantless surveillance program that the FBI has abused on a "persistent and widespread" basis. It passed the Senate last night.
Defending Rights & Dissent, along with almost 100 other organizations, warned against including 702 in a must-pass bill like the NDAA.
Congress could have given the surveillance hawks in the administration what they wanted: a reauthorization of FISA Section 702 to capture the communications of non-US persons overseas for foreign intelligence purposes, while also enacting sensible reforms to protect Americans from warrantless searches. They could have passed the Protect Liberty and End Warrantless Surveillance Act, or, even better, the Government Surveillance Reform Act. Either of those bills would have reauthorized Section 702 and enacted far-reaching reforms to protect Americans’ communications.
Instead, they gave in to false claims made by the intelligence community and their lackeys who screamed like chicken little that the sky is falling and 702 had to be reauthorized right now. Congressional leadership was susceptible to their fear mongering tactics and inserted a provision to extend 702 without any reforms into the NDAA. They claimed the extension was only through next April, but the truth is this short term extension will allow the NSA to continue to scoop up data, with minor exceptions, through April, 2025. All without any protections for Americans.
DRAD bombarded Congress with emails, phone calls, and tweets to defeat the measure. So did our allies.
It was an uphill battle all the way, but we did come close to winning:
In the Senate, we needed 41 members to vote the right way. We got 35 votes:
Baldwin (D-WI), Blackburn (R-TN), Booker (D-NJ), Braun (R-IN), Brown (D-OH), Cantwell (D-WA), Cramer (R-ND), Daines (R-MT), Durbin (D-IL), Grassley (R-IA), Hagerty (R-TN), Hawley (R-MO), Heinrich (D-NM), Hirono (D-HI), Hoeven (R-ND), Johnson (R-WI), Lee (R-UT), Lujan (D-NM), Lummis (R-WY), Markey (D-MA), Marshall (R-KS), Menendez (D-NJ), Merkley (D-OR), Paul (R-KY), Sanders (I-VT), Schmitt (R-MO), Scott (R-FL), Tester (D-MT) ,Tuberville (R-AL), Van Hollen (D-MD), Vance (R-OH), Warnock (D-GA), Warren (D-MA), Welch (D-VT), and Wyden (D-OR).
In the House, we needed 145 votes, and got 118. See the roll call here (a nay vote was the right vote).
It is deeply disappointing that members of Congress would ignore the evidence of FBI abuses under 702 and vote to extend it. In November, we joined with 30 other organizations to remind members of Congress of the abuses we know about:
Section 702 has been routinely abused in ways that violate Americans’ fundamental civil liberties and civil rights. FBI agents have used this surveillance authority, which is supposed to be limited to non-U.S. citizens located outside the United States, to gain warrantless access to the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress. Even after the FBI’s recent changes to its internal procedures, the abuses have continued, with agents conducting warrantless searches for the communications of a U.S. senator, a state senator, and a state court judge who contacted the FBI to report civil rights violations by a local police chief. NSA agents, for their part, have abused the authority to search for the communications of online dating prospects and potential tenants.
Many members of Congress are deeply concerned about dragnet surveillance, but most members are afraid to vote against the NDAA, which was the administration’s strategy all along.
Because of that dynamic — and because the administration will insist on a long term 702 reauthorization before the end of April — we believe we have a real chance of passing either the Protect Liberty and End Warrantless Surveillance Act (HR 6570) or the Government Surveillance Reform Act (S 3234/HR 6262).
Both bills:
Prohibit the FBI from trolling through the vast 702 database for Americans’ communications without a warrant;
Prohibit the government from buying our private data from data brokers instead of getting a warrant;
Add significant transparency and accountability requirements to the secretive FISA court.
The Government Surveillance Reform Act would also extend those warrant protections to surveillance activities carried out under Executive Order 12333 (one of the most secretive, and therefore most easily abused, surveillance authorities).
The Protect Liberty and End Warrantless Surveillance Act has broad bi-partisan support, having passed out of the House Judiciary Committee last week on a vote of 35-2. The Government Surveillance Reform Act also has bi-partisan support, with co-sponsors from each party. It has not yet been marked up or voted on in committee.
We’ll work hard to get one of these bills to the floor for a vote — and feel cautiously optimistic we can get one across the finish line and to the President’s desk.