A group of US lawmakers is trying to convince Congress to use the lame-duck session to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA).
The idea is to add it to the must-pass National Defense Authorization Act (NDAA) – and in this way bypass the incoming Congress, which is expected to be more privacy-friendly.
There is no time to waste: the House is scheduled to sit until December 17 and the Senate until December 18.
"My preference would be, let's just take the win that's on the table, get it done in the lame-duck," House Intelligence top Democrat Jim Himes is telling the press, while adding, "If that fails, we'll do something in the first quarter."
Senator Mike Rounds (R-SD) seems to be on the same page, noting that there is not enough time to deal with FISA separately, but it could be done if it is amended onto the NDAA.
"We don't have two weeks to work just on FISA," he said, and added, "If it's amended onto the NDAA then you can move forward and get it done in that time."
Himes and others want to rush the process in the hope of avoiding a new Congress that might try to add a warrant requirement to the new bill – and that, in their view, would be a step too far.
What 702 does is let US spy agencies collect communications of foreigners abroad without a warrant – and in the process, sweep up that of Americans as well. Those can then be searched by agents, again without a warrant, in what is known as backdoor search.
As Reclaim The Net reported in March, citing a ruling of the FISA Court, the FBI alone ran those searches more than 278,000 times in a single year.
"A supervisor's sign-off is not a warrant," we wrote at the time.
In the same ruling, the secret court said that the FBI had violated the US Constitution's Fourth Amendment protections against unreasonable searches. The ruling was issued on March 17, and although the legal deadline to declassify it was September 13, it still remains secret.
Two senators, Ron Wyden and Adam Schiff, have said that the ruling covers how analysts can read Americans' messages without a warrant. The NSA, FBI, and CIA are all allowed to search the data collected under 702, and look for US persons' communications.
In a letter to the leaders of Congress, 27 civil society groups, led by Demand Progress, reminded lawmakers that 702 has been "abused to spy on protesters on the left and the right; 19,000 donors to a congressional campaign; members of Congress and their staff."
The letter, sent on November 12, asks that 702 is not attached to the NDAA or any other must-pass bill, and that the House and Senate have a proper debate on the matter.
Other lawmakers who want to see 702 reauthorized as soon as possible are Mark Warner (D-VA), vice chair of the Senate Intelligence Committee, and who believes that if that doesn't happen in the lame-duck session, "it becomes much more difficult in a new Congress."
Senator Mark Kelly (D-AZ) is also on board, saying, "We need to get it reauthorized... As soon as possible."
Senator James Lankford (R-OK) agrees, and believes the reauthorization should have happened "months ago."
Senator John Cornyn (R-TX) and former Biden administration official Adam Klein co-authored an op-ed published in the Wall Street Journal on November 12, titled, "A Vital National Security Tool Shouldn't Go Dark."
Himes is one of those who want to rush the process in the lame-duck session because, as he put it, "it's a political reality that the 702 that gets reauthorized with a Democratic House and Senate is going to be a very different 702 that gets reauthorized in the lame duck."
The "urgency" is not really there, since the statute lapsed at midnight on June 12, 2026, but the spying continues thanks to the FISA Court's annual certifications. At a July 15 Senate hearing, Sen. Mike Lee asked if the current authorization expires "until midnight on March 16 of 2027" - and the answer he received from Todd Blanche, then the attorney general nominee, was, "That is correct."
As Reclaim The Net reported in June, the "going dark" narrative is a myth - and that is because the FISA Court's authorization of 702 is good for a year, regardless of whether Congress acts or not.
Congress has used the NDAA to give 702 a short-term extension once before - in 2023.
The groups who signed the November 12 letter are not buying the argument that there is some urgency to pass the bill now, and that not doing it would leave the US in the dark.
The groups also point out that the claimed urgency presents "a false choice" and is "another scare tactic" - while in fact, "only 12 percent of Americans want FISA extended as-is."
Demand Progress executive director Hajar Hammado is unimpressed with Himes' efforts, saying, "Jim Himes has betrayed his own party and the American people."
Due Process Institute vice president Jason Pye said voters are "sick of backroom deals."
The Brennan Center for Justice at NYU School of Law's Hannah James is of the same opinion: "Slipping an extension into must-pass year-end legislation, instead of openly debating and voting on bipartisan reforms, would betray the democratic process and Americans' Fourth Amendment rights."
One of the groups who signed the letter, Color Of Change, was one of the main promoters of the 2020 "Stop Hate For Profit" Facebook ad boycott – which, as Reclaim The Net reported at the time, resulted in the tech giant bowing to the pressure and censoring more "hate speech."
It may seem strange that a group who pushed for more online censorship is now worried about the government's warrantless surveillance – but their stand on this issue is correct, and it doesn't erase their previous actions.
While Himes is wrong in saying that there is a win on the table in the lame-duck, he is right that the new Congress could add a warrant requirement - but that is the best argument for waiting, rather than rushing the process.
There is certainly no excuse to attach such a controversial provision to a defense bill – the question of whether the government should be able to read Americans' messages without a judge's approval has nothing to do with the NDAA, and everything to do with the Constitution.
