WASHINGTON, D.C. — The U.S. House of Representatives is expected to vote as soon as tomorrow on extending a controversial surveillance power, Section 702 of FISA, as part of the NDAA. Ahead of the vote, 55 members of Congress have already called for Section 702 to be removed from the NDAA, and both the House Freedom Caucus and Congressional Progressive Caucus have expressed their opposition to its inclusion.
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.
Ahead of the expected vote, Demand Policy Director Sean Vitka issued the following statement:
“Congressional leaders are once again trying to stop members of Congress from even voting on real privacy protections for people in the United States, which betrays the broad, bipartisan outcry of millions of Americans for urgent action. Including Section 702 in the NDAA not only threatens to perpetuate continuous abuse of FISA into 2025, it imperils the NDAA’s passage in the House. This could be easily solved by adding one sentence to clarify this 4-month extension is not really a 16-month punt, or Congress could honor the demands of their constituents by reauthorizing Section 702 with privacy protections by bringing the Protect Liberty and End Warrantless Surveillance Act to the Floor. Instead, members are being asked to support extending controversial mass surveillance that most Americans simply do not support.”
The broad, bipartisan support for ending warrantless surveillance has been made clear. New polling shows the vast majority of Americans support increased protections from government surveillance and the House Judiciary Committee voted 35-2 in support of major reforms to Section 702 that would protect Americans’ privacy. Here’s what members of Congress said when expressing their opposition to 702’s inclusion in the NDAA:
Rep. Pramila Jayapal: “The privacy of Americans should be of the utmost importance to our government, and yet, we have seen too many examples of unchecked, warrantless surveillance of Americans. An overhaul is necessary to protect Americans’ Fourth Amendment rights and their sensitive, personal data. Section 702 reauthorization should be subject to strong scrutiny and debate and cannot be included in larger, must-pass legislation. Congress must work to stop the government from warrantlessly spying on Americans.”
Rep. Warren Davidson: “Under no circumstance should Congress fully reauthorize Section 702 of FISA as an attachment to the NDAA. Under Section 702, U.S. Intelligence agencies conduct mass warrantless surveillance on American citizens and a clean reauthorization or extension only continues this abuse. Congress must allow opportunity for open debate, amendments, and reform prior to any reauthorization of this legislation.”
A temporary extension of Section 702, like the one currently included in the NDAA, 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.