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A Backroom Deal Looms Over Section 702 Surveillance Fight

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Johnson, notably, Vote in favorLegislation that would have dramatically reformed the 702 Program with a host of privacy protections.

Despite the unusualSources familiarized with the negotiations report that there is bipartisan support for reforming Section 702. However, pro-privacy amendements have a long history of being killed in backroom agreements. An proposed last summer to ban the US military from tracking Americans’ cell phones without a warrant was snuffed out in a closed-door session despite winning widespread support in the House. Yet another amendment—which would have done little to interfere with the federal government’s domestic surveillance work—likewise gained support in the House two years ago. But even this half measure was eventually axed after negotiations were moved away from the public and the press.

Many in the national-security establishment were surprised at the effectiveness of a recent round of bipartisanship that was pro-privacy. Sources in Congress say that only a weak resistance to reauthorizing surveillance was expected a year ago. Even its most vocal critics admit that the 702 program may be vital to the US’s national defense. It is crucial for investigations of terrorist threats, espionage and the constant flood of cyberattacks against US companies and infrastructure.

In the fall of 2023, however, a serious threat to the continuation of the program in its current form arose. The smooth reauthorization became a distant dream when the sudden fight for the speakership of the House in October was added. Working groups established in the House to find common ground eventually disintegrated, leaving only two discernible factions in their wake—one that believes the FBI should apply for warrants before accessing US calls, texts, and emails intercepted by US spies; and another that says warrants are too much of a burden for investigators.

What’s counted toward compromise since then might best be described as a “rounding error.”In December, lawmakers opposed to warrants agreed that FBI should obtain a search warrant before accessing 702 information in investigations that do not have a foreign element. But of the hundreds of thousands of Americans queried by the bureau each year, only a small fraction fall into this category—fewer than 1 percent, according to some civil liberties experts.

The Section 702 program was last extended in December until April, when certifications issued by the Foreign Intelligence Surveillance Court expire, ending a requirement that American companies cooperate with the intelligence community’s wiretap demands. Some experts believe that the intelligence agencies may start applying for new certificates as soon as next month. This will allow the surveillance program to continue unabated for an extra year, regardless of whether Congress acts.

It is 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 goes suddenly unauthorized by Congress. Allowing a program to expire is usually preferable to allowing it to be voted on if there is a risk that the law will be changed to include unwanted restrictions.

Expired surveillance programs can continue to operate. US lawmakers introduced two bills last year, aimed at banning FBI spying techniques, which were technically made illegal four years ago when Congress failed to reauthorize Section 215 of the Patriot Act legislation, which provided a suite of surveillance tools.

House leaders—Democrats at the time—faced similar popular opposition to continuing the 215 surveillance under status quo conditions. Instead of risking a vote which could permanently kill the program, it was allowed to expire. Since then, FBI has continued to use the surveillance techniques year after year. “grandfathering”There are a number of new cases.

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