The surveillance program that scoops up Americans’ communications without warrants got another 45 days of life on Thursday, after Congress reauthorized a clean version of FISA Section 702 hours before it was set to expire.
The House voted 261-111 to push the program’s expiration to June 21, sending the legislation to President Trump’s desk before the midnight deadline.
Senate Majority Leader John Thune said, “This will allow additional time to do that,” referring to ongoing work on a longer-term reauthorization that the upper chamber has been drafting separately.
What the procedural language obscures is what Section 702 actually does. The statute lets the NSA harvest communications from foreign targets without warrants, then stores those communications in a database that intelligence agencies can later search for information about Americans.
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The agency calls this incidental collection but it functions as a workaround for the Fourth Amendment, allowing the government to access Americans’ messages, calls, and emails by claiming the foreigner on the other end of the conversation was the real target.
The renewal arrived only after a messy week of legislative whiplash. The House had originally passed a three-year extension on April 29, attaching an unrelated provision to ban the Federal Reserve from issuing a central bank digital currency.
Senate leadership killed that version on arrival, then jammed the lower chamber with a stripped-down 45-day extension that contained no privacy reforms, no warrant requirement, and no concession to the lawmakers who have spent years documenting how the program gets misused.
The Foreign Intelligence Surveillance Court opinion at the heart of Thursday’s fight is the closest thing to a smoking gun the public has seen on Section 702 in years.
The ruling addresses searches of Americans’ communications inside the NSA’s foreign intelligence database, the same backdoor query practice that has been flagged repeatedly by oversight bodies.
The court found problems with how the government has been running these searches.
What problems, specifically, remain classified.
That is the document Senator Ron Wyden, the Oregon Democrat who has spent over a decade trying to force daylight onto NSA programs, wanted Americans to read before Congress voted on a multi-year extension.
Wyden initially refused consent for the 45-day deal, holding out until Senate Intelligence Committee Chair Tom Cotton and ranking Democrat Mark Warner agreed to send a letter asking the executive branch to declassify the opinion within 15 days.
On the floor, Wyden made the case for why the secrecy is the problem. “That ruling found serious violations of Americans’ constitutional rights and how the Trump administration has used Section 702,” he said. “Congress should not vote — should not vote — to renew Section 702 when Americans are left in the dark about these troubling abuses,” Wyden said.
Cotton, an unwavering supporter of the program, took the framing personally. “I am ducking nothing. I am pointing out the senator from Oregon’s long-standing practice of distorting highly classified material in public,” Cotton said. “One of these days there are going to be some consequences, and it may be while I’m the chairman of this committee.”
Cotton runs the committee that controls intelligence community oversight, and the speech or debate clause of the Constitution is the only thing protecting senators from prosecution for what they say on the floor.
Stripped of theatrics, the message from the chairman of the body that supposedly checks the surveillance state was that pointing out documented abuses is itself a punishable act.
The result of all this is also that a surveillance program with documented constitutional problems gets six additional weeks of operation while the ruling describing those problems stays buried.
Current law already requires the FISC opinion to be released to the public eventually. Wyden wants that timeline accelerated to before Congress votes on a multi-year reauthorization, on the reasonable theory that lawmakers should know what they are voting to renew.
“Congress must use a short-term extension to openly debate the critical issues in front of the American people. I am disappointed that, instead, it sure feels like the other side of the aisle is covering the abuses up,” Wyden said.
What happens next depends on whether the executive branch honors the declassification request, and whether the Senate’s three-year reauthorization includes anything resembling meaningful reform.
The version that has been moving through committee does not require warrants for searches of Americans’ communications. It does not narrow the categories of foreign intelligence that can justify surveillance or impose meaningful limits on how long the NSA can retain the communications it collects.
The program scheduled for renewal on June 21 is not the program Congress originally approved.
