WASHINGTON, D.C. — Congressional leaders are threatening to betray broad bipartisan support for surveillance reform by ramming through reauthorization of Section 702 in the NDAA. Leadership is advancing an NDAA that includes a clean extension of Section 702 until April 19, but FISA experts fear this is an attempt to punt this crucial discussion until 2025 (more context on this below).
According to the FISA Court, Section 702 has been abused on a “persistent and widespread” basis. Just last week, the House Judiciary Committee moved forward the Protect Liberty and End Warrantless Surveillance Act (H.R. 6570) on a 35-2 vote. This bill would reauthorize Section 702, as the administration has demanded, but with meaningful privacy protections for people in the United States, notably closing the backdoor search loophole and the data broker loophole.
In response to Congressional leaders attempting to undermine the bipartisan support for major reforms to Section 702 by shoving reauthorization into the NDAA, Demand Progress Policy Director Sean Vitka issued the following statement:
“Patriot Act 2.0 remains a threat given that House leadership can still bring it to the floor at any time, but now Congressional leadership is back to trying to ram a clean extension of Section 702 through in the NDAA. It’s unacceptable, unnecessary, and threatens to stop members of Congress from having this crucial debate over Americans’ privacy until 2025. The Senate Parliamentarian has held that FISA isn’t even germane to the NDAA, and we support the many leaders standing opposed to its inclusion. As this broad, bipartisan coalition has said, it’s time to fight like hell for the privacy of people in the United States, and we aren’t about to stop.
“All leadership needs to do is ensure this 4-month extension doesn’t kick the can until 2025, and we can get back to the important question at hand: how to protect Americans from warrantless surveillance.”
A temporary extension of Section 702 would be entirely unnecessary and paves the way for a sixteen-month extension. The government is currently conducting Section 702 surveillance under a annual FISA Court certification that expires in April 2024. Per Section 404 of the FISA Amendments Act of 2008, such certifications remain valid until their expiration, notwithstanding any other provision of law. Therefore, as government officials acknowledged during the last reauthorization cycle and during this one, the government’s ability to conduct surveillance will continue into 2024 even if Section 702 expires in December. Our coalition has made clear and communicated to Congressional leaders for weeks that any temporary extension in the NDAA should have language capping new FISA Court certifications in early 2024 to ensure that the government cannot use an extension to get new, year-long certifications, turning an ostensible short-term reauthorization into a sixteen-month punt.