Congress passed an extension of key government spy powers, temporarily punting the deadline until April 30 as lawmakers in both parties disagree on whether to reform the contentious surveillance program.
The House and Senate both approved the two-week extension in unanimous voice votes on Friday after weeks of debate and tense political infighting. But the debate over the reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, or FISA, isn’t necessarily new.
And it’s likely not going to end any time soon.
“We were very close tonight. There’s some nuances with the language, and some questions need to be answered, and we’ll get it done,” Speaker Mike Johnson, R-La., told reporters after the House approved the extension in a rare overnight voting session. “The extension allows us the time to do that.”
Meanwhile, Majority Leader John Thune, R-S.D., seemed ready to take the reins on the FISA debate and let the Senate take the lead.
“We just got to have optionality here,” Thune said on Friday. “I don’t know what the House is going to be able to do, and so we’ll be preparing accordingly.”
Here’s a breakdown of the fight over FISA and where key lawmakers stand on the issue.
What is Section 702 of FISA?
Section 702 of FISA is an intelligence collection authority that allows the intelligence community to “collect, analyze, and appropriately share foreign intelligence information about national security threats,” according to the Office of the Director of National Intelligence.
Congress first enacted that authority in 2008. Section 702 specifically allows intelligence agencies, particularly the National Security Agency, to collect communications of foreign targets located outside the United States without needing a traditional warrant.
In doing so, the authority allows the U.S. to track potential terrorist threats, espionage, and more.
But Section 702 has periodical expiration dates, meaning Congress must routinely reauthorize the spying powers. Under the latest iteration, the section was set to expire on April 20, but lawmakers passed the temporary 10-day extension on Friday letting the program last until April 30.
If the program were to go dark, intelligence agencies would lose their authority to collect foreign intelligence, which officials say would cause a major intelligence gap.
What are the two opposing sides at play?
While some national security hawks pushed for a clean extension, meaning the program would be extended without any changes, there are some members of Congress who believe the program needs substantial reforms before it can be reauthorized.
Those competing views pose a rare fight that is not beholden to party lines. In fact, it has united conservative Republicans with progressive Democrats in a way that has made it hard for top congressional leaders to get anyone on the same page.
The main disagreement is over the sweeping authority Section 702 gives intelligence officials when it comes to collecting communications without needing a warrant. While the section only allows the targeting of non-U.S. citizens abroad, it can sometimes sweep up communications from Americans living inside the country.
As a result, some lawmakers have pushed for reforms and language that would require warrants before the FBI can search 702 databases for U.S. citizens’ data, but intelligence officials warn those requirements could slow investigations.
Other lawmakers have also pointed to reports that show the FBI has misused the Section 702 authority in the past to search for communications of protesters, members of Congress, political staffers, a state court judge, journalists, and political donors.
President Donald Trump himself has suggested that Section 702 has been used against him to collect his communications, but the president also encouraged lawmakers to pass a clean extension in the latest round of negotiations.
Sen. Mike Lee weighs in
Utah Sen. Mike Lee has long been vocal about his stance on FISA Section 702 reauthorization, and he has pushed for sweeping reforms.
As the Senate passed the temporary extension on Friday, Lee published a joint op-ed with Sen. Dick Durbin, D-Ill., in The New York Times calling for passage of his bill that would require government agencies to obtain a FISA Title 1 order or warrant before accessing Americans’ communications that were collected through Section 702 spying powers.
“We write as Senators with opposing views on many issues. One of us is a longtime Democrat, the other a conservative Republican. But today, we join together to call on our congressional colleagues to safeguard the American people from warrantless government surveillance,” they wrote. “Two hundred and fifty years ago, the Founders of this nation understood that protection from unreasonable government searches is essential to a society grounded in liberty rather than tyranny. We owe it to the American people to meet this moment and do our jobs to protect both national security and civil liberties. Our bill offers a bipartisan solution to do just that.”
Their bill, called the Security and Freedom Enhancement Act, would not require warrants for searches of foreign communications and would only apply to cases of U.S. citizens. In doing so, the senators argue it would limit the number of cases the government would need to seek a warrant while also ensuring American citizens are not spied on without cause.
The proposal, among other things, would also require increased internal supervision when it comes to queries on U.S. citizens “to increase accountability, compliance, and oversight.”
“For too long, Congress has habitually reauthorized Section 702 without significant reforms,” the senators wrote. “Congress should not needlessly rush to extend this authority without the American people and their elected representatives knowing the full truth about the extent of ongoing abuses and compliance failures.”