Johnson, in particular, has previously voted in favor of legislation that would have substantially reformed the 702 program with more privacy protections.
Although unusual bipartisan support for reforming Section 702, sources familiar with the negotiations say pro-privacy amendments have a history of dying in backroom deals. An amendment proposed last summer to prohibit the US military from tracking Americans’ cellphones without a warrant was shot down in a closed-door session despite winning broad support in the House. Another amendment – which would do little to disrupt the work of local government watchdogs – also gained support in the House two years ago. But even this half-step finally found itself in the cut after the negotiations were moved to rooms open to the public or the press.
The effectiveness of this latest round of pro-privacy bipartisanship has come as a surprise to many in the national security establishment. Congressional sources say that a year ago, only weak resistance to the reauthorization of surveillance was expected. Even its biggest detractors openly acknowledge that the 702 program is likely to be vital to US national defense, critical to investigations into terrorist threats, espionage activities, and the constant stream of cyberattacks aimed at those US companies and national infrastructure.
On the contrary, a serious challenge to the continuation of the program under status-quo conditions arose in the fall of 2023. Added to the sudden fight in the House speakership in October, the orderly reauthorization of Section 702 became a far-fetched fantasy. Working groups established by the House to find common ground eventually disbanded, leaving only two visible factions in their wake: One, which believes the FBI should apply for warrants before accessing US calls, texts, and emails intercepted by US spies. And another said the warrants were too burdensome for investigators.
What has been considered a compromise since then can best be described as a “rounding error.” Lawmakers opposed to the warrants agreed in December that the FBI must obtain a warrant before accessing 702 data in investigations that lack a foreign component. But of the hundreds of thousands of Americans questioned by the bureau each year, only a small fraction fall into this category—less than 1 percent, according to some civil liberties experts.
Section 702 The program was last extended in December through April, when certifications issued by the Foreign Intelligence Surveillance Court expire, ending a requirement that American companies cooperate with the wiretap needs of the intelligence community. Some experts predict that the intelligence community may begin applying for new certifications as early as next month, allowing monitoring to continue uninterrupted for an additional that year, even if Congress fails to act.
It’s often the last resort of congressional leaders to block privacy-enhancing bills from reaching the floor for a vote—even if the result is that a surveillance program is suddenly disallowed by Congress. Allowing a program to expire is often better than allowing a vote to take place if it risks enshrining unwanted restrictions in the law.
Ended surveillance programs can find ways to continue. US lawmakers introduced bills twice last year, for example, with measures aimed at banning FBI surveillance techniques that were technically made illegal four years after Congress failed to authorize them. also in Section 215: a package of monitoring tools provided by the 9/11-era Patriot Act legislation.
House leaders—Democrats at the time—faced similar popular opposition to continuing 215 surveillance under status-quo conditions. Rather than risk a vote that could permanently kill the programs, it was simply allowed to expire. Since then, the FBI has continued to use its own surveillance techniques, every year, “grandfathering” a set of new cases.