A 2008 statute that legalized a warrantless surveillance program is set to expire next month unless Congress votes to extend it, leaving lawmakers divided over whether to renew it as-is or attach limits.
The White House has asked its allies in Congress to extend the law without changes, and Speaker Mike Johnson said this week that he wanted to bring up a bill that would push back its expiration by another year and a half.
“The plan is to move a clean extension,” he said, calling the law, known as Section 702, “responsible for the large measure of intelligence that we use to protect and keep Americans safe.”
But the politics are tricky. Advocates in both parties of civil liberties and privacy are hoping to attach new limits on government surveillance and data collection to any such legislation. An extension bill would need 60 votes to pass in the Senate — a threshold it just reached in 2024, the last time Congress extended Section 702.
Moreover, some Republicans have called for voting against any bill, including a potential Section 702 extension, if it does not include new restrictions on voting that they have been pushing for. And their razor-thin majority in the House means only a few defections can thwart Mr. Johnson’s ability to pass legislation.
Here is a closer look.
What is Section 702?
It is a law that allows the government to collect — on domestic soil and without a warrant — the communications of foreigners abroad, including when those people are interacting with Americans. Under the law, the National Security Agency can order email services like Google and network operators like AT&T to turn over copies of messages of targeted foreigners.
Where did it come from?
After the terrorist attacks on Sept. 11, 2001, President George W. Bush secretly ordered a warrantless wiretapping and bulk data collection program code-named Stellarwind. The program violated the Foreign Intelligence Surveillance Act of 1978, or FISA, which required a judge’s approval for national security surveillance on domestic soil, but Mr. Bush’s lawyers claimed he had constitutional power to override that law.
Apart from the legal dispute, the policy argument for the program was that technological changes since 1978 had made foreigners’ messages available on domestic networks, subjecting their collection to warrant requirements that Congress never intended.
After a December 2005 New York Times article brought to light the warrantless wiretapping aspect of Stellarwind, Congress legalized a form of that program by adding what is now known as Section 702 to FISA. But Congress also put an expiration date into the law to ensure reconsideration, which means it has periodically come up for renewal.
Why can’t the government just get warrants?
National security officials argue that doing so would sharply curtail foreign intelligence collection: Applying for individual court orders takes time and resources and must meet evidentiary standards. In 2024, the most recent year for which data is available, there were 291,824 foreign targets of Section 702 warrantless surveillance. By contrast, the government obtained FISA court orders targeting 602 Americans or noncitizens on domestic soil.
Why is it controversial?
The recurring debate over Section 702 has tended to scramble the usual partisan lines, with lawmakers of both parties who are civil-liberties minded — often associated with the judiciary committees — joining forces to criticize it. Centrists and national security hawks of both parties, often centered on the intelligence committees, have tended to back it.
Privacy advocates have particularly criticized Section 702 because it sometimes enables the government to collect Americans’ messages without any court order. The law forbids using Section 702 to target Americans, but when a foreigner who has been targeted communicates with an American, the government collects that person’s messages to and from the target without a warrant.
There are limits on when analysts can use an American’s identifiers — like a name, email address or phone number — to search the repository of collected communications. But previous audits have found that F.B.I. analysts frequently exceeded those limits. Before the last reauthorization cycle, the F.B.I. made changes that reduced the number of bad queries, and the legislation in 2024 codified many of them into law.
What do reformers want?
Privacy advocates have long wanted Congress to require officials to obtain a warrant from a court before they may gain access to an American’s information in the database. A bipartisan bill introduced by Senators Mike Lee of Utah and Ron Wyden of Oregon, and by Representatives Warren Davidson of Ohio and Zoe Lofgren of California, would impose such a requirement.
It would also impose other limits on surveillance and data collection. For example, it would repeal a 2024 expansion to the Section 702 program that was aimed at data centers but that critics maintain was worded too broadly. And it would ban buying Americans’ data from data brokers if the government would need a warrant to obtain the information directly.
More than 100 civil-liberties groups sent Congress a letter on Thursday urging lawmakers not to extend Section 702 without adding a measure closing what they called the “data broker loophole.” The letter, which called the legislation “the best opportunity” to protect against the use of artificial intelligence to “supercharge” government data-mining about Americans, was organized by Demand Progress and the Project on Government Oversight.
What is the plan of Trump allies?
The White House is seeking a clean extension, which aligns with the plan Mr. Johnson has put forward: postponing Section 702’s expiration by another 18 months without any changes.
One of Mr. Trump’s key allies, Representative Jim Jordan, an Ohio Republican who leads the Judiciary Committee, said in an interview with Breitbart News this week that the changes Congress made in 2024 were sufficient. In the past, Mr. Jordan has opposed reauthorizing the surveillance law and voted against the 2024 bill.
“We feel like, in light of all those changes, a short-term, temporary extension is fine,” he said. “And that’s what the White House is asking for.”
Mr. Trump, however, has historically been volatile. He became hostile to national security surveillance during the investigation into Russia’s links to his 2016 campaign. In that investigation, the F.B.I. botched applications for traditional FISA warrants targeting a former Trump campaign adviser.
In January 2018, the Trump administration said it wanted Congress to extend Section 702 without significant changes. But at the last minute, Mr. Trump expressed skepticism about FISA on social media, rattling Republicans. After Speaker Paul D. Ryan called him, the president backed off and the bill went through.
In April 2024, the House was poised to pass a five-year extension when Mr. Trump — then out of office — abruptly told Republicans to “kill” it, and the legislation collapsed. Mr. Johnson eventually scaled down the bill to a two-year extension, and that shorter version passed.
What happens if the law lapses?
The Section 702 program would not immediately shut down if the statute expired. It operates under certifications that the Foreign Intelligence Surveillance Court issues each year authorizing the government to direct communications companies to participate. The key provision says these directives “shall continue in effect” until their expiration dates.
The FISA court typically issues annual certifications around this time of year, although the government’s applications are not made publicly.
Still, in 2024, when Congress appeared on the verge of letting the law lapse, the Biden administration said that some service providers had threatened to stop providing data. They warned that even if the government went to court to compel their cooperation, there could be gaps before any such orders took effect.
The New York Times later filed a Freedom of Information Act lawsuit seeking to identify those companies. The government kept their identities secret but released heavily redacted emails corroborating that there had been such communications.
Charlie Savage writes about national security and legal policy for The Times.
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