US Senate Extends Controversial Foreign Intelligence Surveillance Act Despite Privacy Concerns

Foreign Intelligence Surveillance Act

The US Senate passes the extension of the Foreign Intelligence Surveillance Act before the deadline

The US Senate voted 60 to 34 to extend the controversial Section 702 of the Foreign Intelligence Surveillance Act, or the unwarranted surveillance program, ahead of the deadline on Friday (April 19).

The bill now heads to President Joe Biden to be signed into law. National security adviser Jake Sullivan said Biden “will sign this bill quickly.”

“At the last minute, we reauthorized the Foreign Intelligence Surveillance Act just before midnight,” Senate Majority Leader Chuck Schumer said 15 minutes before the final vote. We kept trying to make a breakthrough, and finally, we succeeded.”

Key Concepts

• The US Senate voted to extend Section 702 of the Foreign Intelligence Surveillance Act.
• Critics argue that the program violates privacy rights guaranteed by the Constitution.
• Supporters warn of catastrophic consequences if the provision is not extended.
• Section 702 has been crucial in preventing terrorist attacks and foreign espionage.
• The House of Representatives passed a bill to extend Section 702 authority for two years.
• The Biden administration expects the intelligence-gathering powers to remain in place for at least another year.
• Reauthorization of Section 702 was praised by US officials, including Attorney General Merrick Garland.
• Some communications companies have threatened to stop cooperating with the government.
• Reauthorization includes reforms to protect Americans’ privacy and civil liberties.
• Court approval should not override congressional authorization, according to some arguments.

Section 702 of the Foreign Intelligence Surveillance Act allows electronic surveillance of non-US persons overseas and outside the United States for national security purposes.

However, when monitoring foreigners, communications between the target and U.S. citizens are usually collected, and domestic law enforcement agencies such as the FBI can query some of the information without a search warrant (i.e., unwarranted surveillance), which some lawmakers believe violates the right to privacy guaranteed by the Constitution.

But the White House, intelligence chiefs, and the House Intelligence Committee warned that failure to extend the provision could have catastrophic consequences.

This monitoring tool was first authorized in 2008. Renewed multiple times since then, it is critical to thwarting terrorist attacks, cyber intrusions, and foreign espionage and also provides the intelligence the United States relies on in specific operations, such as in 2022, when a US drone killed Ayman al-Zawahiri of the international terrorist organization al-Qaeda in Kabul.

“If you miss a piece of critical intelligence, you could miss something overseas or put the military at risk,” said Republican Senator Marco Rubio, vice chairman of the Senate Intelligence Committee. “You could miss a plot to harm the country at home or elsewhere. In this particular case, there are real-life implications,” he said.

Last week, the House of Representatives passed a bill that would extend Section 702 authority for two years. That’s less than the five years House and Senate leaders had originally hoped for. US House Speaker Mike Johnson shortened the authorization period by three years to appease conservative critics in the conference.

While the provision technically expires at midnight Friday, the Biden administration said it expects its intelligence-gathering powers to remain in place for at least another year due to the Foreign Intelligence Surveillance Court’s decision earlier this month. The Foreign Intelligence Surveillance Court reviews requests from federal law enforcement agencies to monitor domestic and foreign spies and foreign intelligence agencies.

Still, officials said court approval should not supersede congressional authorization, especially since communications companies could stop working with the government if the program is allowed to fail.

US officials are already concerned ahead of the law’s expiration after two major US communications providers said they would stop complying with the order through surveillance programs, according to a person familiar with the matter who spoke on condition of anonymity.

US Attorney General Merrick Garland praised the reauthorization and reiterated how “indispensable” this tool is to the Department of Justice.

“Reauthorization of Section 702 gives the United States the authority to continue collecting foreign intelligence information about non-US persons located outside the United States while removing the Department of Justice’s efforts to ensure the protection of US interests,” Garland said in a statement Saturday. Takes important reforms into the code to ensure protection of Americans’ privacy and civil liberties.”