Section 702 Gets Four-Month Extension At The Last Minute

Legal Issues

from the buying-time-to-push-for-a-clean-renewal dept

Just when it finally looked like the FBI’s year of abuse might catch up to it, it (along with the NSA and other beneficiaries of this surveillance authority) has been granted a four-month reprieve.

The FBI made a lot of enemies with its continuous abuse of this surveillance authority — a foreign-facing “collect it all” program the FBI routinely accessed to warrantlessly obtain communications to and from US persons. Various members of Congress pushed reform efforts. The FISA Court repeatedly took the FBI to task for its abuses, but most often decided to express its disappointment, rather than curtail its powers.

But, in recent years, the FBI managed to piss off the wrong people. Trump acolytes in Congress, as well as one particular Trump advisor, found themselves targeted via this surveillance authority. Having made Trump’s “deep state” fantasies a bit more realistic, House Republicans decided this was the year the 702 spigot would be shut off.

But it hasn’t been shut off. In fact, it has been extended for another four months, buying surveillance supporters a bit more time to talk anti-FBI Republicans off the ledge. Two reform efforts have been mounted (although only one contains any actual reforms) but those have been shelved until next spring as the Biden Administration scores a temporary win over House Republicans and, to be honest, the rights of American citizens.

Nina Wang has more details for Mother Jones on this quiet kicking of the surveillance can a little further down the road, including the fact that this can-kicking may end up being longer than just another four months.

[Congress] opted to temporarily extend the spy program through the 2024 National Defense Authorization Act, an annual measure that sets funding and policy priorities for the Pentagon. According to House Speaker Mike Johnson (R-La.), who had tacked the extension onto the NDAA in the first place, this move buys “necessary time to facilitate the reform process.” 

The short-term extension officially stretches the spy program for four months, into April 2024. But under a little-known provision of the FISA law, a special court that oversees the program has the power to let it run for an additional year, until April 2025.

First, stapling it to the NDAA — a must-pass bill — is pretty much cheating. If legislators objected to the four-month extension, they could possibly tank the entire funding package, leading to all sorts of chaos as the military industrial complex moved forward without any budgetary certainties. With wars being fought in Israel and Ukraine, there was no chance the NDAA would be held back until the next Congressional session.

Second, giving Section 702 another four months might possibly give it another year before it can be challenged. If the FISA court exercises its option, a strategic delay might become a 365-day clean re-authorization, pushing this debate until the end of this year. And if that happens, we’ll likely witness the same chain of events in which opposition and reform efforts are stymied by the addition of clean re-auth language to the 2024 NDAA.

On the other hand, the four-month delay might give opponents of a clean re-authorization more time to gather support for their respective efforts. Whether its House Republicans trimming back executive power (at least until one of their own is in the Oval Office) or a reform bill altering the contours of Section 702 going forward, those efforts are still in play as long as Section 702 re-authorization is still in play.

In the meantime, we’ll have to suffer through the stupid statements of surveillance enthusiasts who desperately want the post-9/11 status quo to remain in place.

[FBI Director Christopher] Wray… warned that now was no time to strip the FBI of any authorities. Since Hamas’ October 7 attack on Israel, he said, a “rogue’s gallery” of groups have called for violence against the US. “702 is critical to protecting Americans from foreign terrorist threats,” he urged. “Please don’t throw the baby out with the bathwater.” 

“Do not let it expire,” echoed Rep. Jim Himes (D-Conn.) on the House floor during its vote on the defense bill. “If it expires, Americans and allies will die.”

Sounds pretty dire. But this is what the FBI (and especially Chris Wray) says about literally anything that might impose a warrant requirement. The FBI pretty much made the same argument when cell phone warrants were being discussed by the Supreme Court. It has said this sort of thing repeatedly about device and communication encryption, despite finding almost zero support for its anti-encryption alarmism from DC legislators.

And, of course, there’s always at least one rep willing to claim that any alteration to existing surveillance authorities will immediately result in the deaths of Americans and/or their allies. But there’s not a whole lot of evidence on the record showing the opposite to be true: that allowing widespread foreign surveillance — some of which can be used by the FBI to engage in domestic surveillance — is preventing the deaths of Americans and our allies. Perhaps if surveillance agencies were a bit more open about their successes, we might be able to better engage with the trade-off of civil liberties surveillance supporters insist should always favor the government.

Filed Under: fbi, fisa, fisa court, ndaa, section 702, surveillance