On December 22, President Joe Biden signed a $886 billion defense bill that renewed one of the US government’s most controversial spy programs. Tucked in the 3,000-page legislation is an extension of the administration’s power to warrantlessly surveil foreigners overseas, and snoop on Americans in the process.
The authority, known as Section 702 of the Foreign Intelligence and Surveillance Act (FISA), has been the subject of intense scrutiny over the past few months. Set to expire on December 31, in the weeks leading up to that date, lawmakers were still in heated debates over whether and how to allow it to continue. But these conversations were halted after Congress and the Biden administration squeezed a short-term extension of the spy program through the annual defense bill, potentially keeping it in effect until 2025.
Many civil liberties advocates are criticizing the extension, saying that it skirts a rare, bipartisan push to protect Americans’ privacy. This stopgap measure, they argue, kicks a crucial debate on government spying into the new year—or beyond. In the meantime, it allows federal authorities to hold onto a power that they’ve routinely abused.
“It’s tragic,” says Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security program. “Abuses and civil liberties violations are going to continue at a completely unacceptable rate,” she adds. “For every day, every week, every month that Section 702 continues without reform, that is what’s happening.”
Under Section 702 of FISA, federal investigators do not need a warrant to tap the phone calls, texts, and emails of foreigners outside of the country. But a loophole also lets them access messages that Americans exchange with targets abroad. These communications are funneled into a database that investigators can later search, again without a warrant. Numerous reports have documented the FBI’s “persistent and widespread” misuse of this authority to spy on Americans, running unauthorized searches on Black Lives Matter protesters, for instance, or January 6 rioters, and even a US senator.
In 2021, the FBI conducted about 3 million so-called “backdoor searches” on US residents. Last year, amid pressure from lawmakers and advocates to curb warrantless spying on Americans, that number dropped to about 119,000.
Still, the extent of this intrusion was troubling enough to spark a reform push from Republicans and Democrats. Earlier this month, Rep. Andy Biggs (R-Ariz.) introduced a bipartisan bill to renew a version of Section 702 with key changes, including a warrant requirement for law enforcement to pull Americans’ communications. It sailed through the notoriously divided House Judiciary Committee with support from both sides of the aisle.
Before leaving for winter recess, the House was set to vote between advancing Rep. Biggs’ proposal or a competing bipartisan effort sponsored by Rep. Mike Turner (R-Ohio), which experts said would broaden Section 702 surveillance powers. But many lawmakers didn’t want to rush the vote. Instead, they 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.
It’s a win for the Biden administration, which had been cranking up the pressure on Congress to keep the surveillance authority intact. In a House Homeland Security hearing last month, FBI director Christopher Wray acknowledged that the bureau had misused its Section 702 power in the past, but assured lawmakers that the agency was now operating with more restraint. Wray also 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.”
But many advocates say that by failing to add a warrant requirement and other key changes to Section 702, lawmakers had fumbled a chance to protect both Americans’ safety—and their rights. “It’s extremely disappointing,” says Sumayyah Waheed, a senior policy counsel with the civil rights group Muslim Advocates. There were bills introduced “to actually make the reforms that we desperately need in Section 702.” But “instead of allowing that debate to continue, this was kind of shoved through in a ‘must-pass’ piece of legislation.”
“There were a lot of opportunities for Congress to get this right,” says Andy Wong, advocacy director of Stop AAPI Hate, an organization for advancing the rights of Asian Americans and Pacific Islanders. “They sort of dodged the responsibility here.”
Wong says that leaving such a sweeping surveillance power in the government’s hands puts communities at risk. He points to the wrongful arrest of Professor Xiaoxing Xi, a Temple University physicist who was accused of espionage after the FBI misread emails he wrote to his Chinese colleagues—emails obtained in part under Section 702. Asian Americans and other communities of color often “face heightened scrutiny and suspicion,” he explains. “Really innocuous behaviors may be misinterpreted or viewed through a biased lens and lead to a lot of unwarranted suspicion and potential harm.”
Dr. Xi’s story may be among the more extreme, notes Goitein of the Brennan Center, but there may be other harms that are less obvious but also serious, largely because of the government’s extreme secrecy concerning its use of Section 702. “People can be subject to tax audits, be denied public benefits or public jobs,” she says. “There are any number of ways in which people’s lives might be affected by these searches, and they would never know it.”
When Congress returns in 2024, lawmakers will be expected to take up the reform effort once again. According to Majority Leader Steve Scalise (R-La.), leadership is trying to figure out a “fair process” for ironing out differences in the House proposals. Senate leaders Chuck Schumer (D-N.Y.) and Mitch McConnell (R-Ky.) also have pledged to work with the House on a bill that can be passed “early next year.”
Some experts are stressing the need to make sure the Biden administration acts swiftly since it now has room to drag its feet. “Even if Congress manages to pass a strong reform bill in the spring,” argues Goitein, “the administration has no real incentive to sign it because they know that they can continue surveillance until April 2025.”
Waheed from Muslim Advocates acknowledges their disappointment in what she described as “this setback,” but says, “We look forward to continuing the fight next year.”