The House narrowly passed a three-year extension of a key government surveillance tool on Wednesday after weeks of intense debate — but its future remains uncertain as top Senate Republicans have deemed the measure “dead on arrival.”
Lawmakers voted 235-191 to extend Section 702 of the Foreign Intelligence Surveillance Act, a decades-old law that allows intelligence agencies to collect communications of foreign targets located outside the United States without needing a traditional warrant. The Utah delegation was split on the vote, with Reps. Blake Moore, Burgess Owens and Celeste Maloy all voting in favor and Mike Kennedy voting against.
The successful vote is a major win for House Speaker Mike Johnson, R-La., who engaged in negotiations throughout the night on Monday and all day Tuesday to reach an agreement. To get some of the most stubborn members on board, GOP leaders agreed to attach language establishing a permanent ban on central banking digital currency — a deal that could very well spell its doom when it heads to the Senate.
Senate Majority Leader John Thune, R-S.D., warned that provision would be “dead on arrival” in the upper chamber due to opposition from both parties.
“They know that,” Thune said on Tuesday.
Instead, Thune signaled that provision would likely be stripped from the underlying bill before it gets a vote in the Senate. Doing so, however, would require the House to approve it a second time — and time is running out before the FISA program is scheduled to go dark late Thursday night.
In the meantime, the Senate could pursue a temporary extension to buy time for more negotiations, although it’s not clear how long that may last. Thune said on Wednesday the Senate is likely to send back a 45-day extension, but details are still fluid.
“We can’t move a bill that has CBDC attached,” Thune said. “We’re probably going to end up doing a short-term.”
The current iteration of Section 702 is scheduled to expire just after midnight on Thursday. 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.
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 while some national security hawks have 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.
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.
The debate on FISA has plagued Congress for years as 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.