Senate Undercuts Section 702 Reform Efforts By Stapling Blanket Approval To A Must-Pass Budget Bill

The most serious opposition to extending Section 702 surveillance authorities since the immediate aftermath of the Snowden leaks came from a perhaps-unexpected source: House Republicans.

Of course, this isn’t an altruistic effort. This is purely politically motivated, driven by abuses of surveillance authorities by the FBI. The FBI has always done this. It just so happens that this time, Republicans and Trump acolytes got wrapped up in the FBI’s perpetual abuses of its FISA powers.

One would have hoped for a more unified opposition. But the periodic renewal of executive surveillance powers is always a political plaything, often opposed by those who don’t have their guy in the White House and supported by those who do. This was simply more of the same, only more so, since Republicans are now more willing than ever to engage in paper-waving and saber-rattling, especially if doing so might ingratiate them with a voting base willing to engage in insurrection to give their favorite lame duck president another shift at the wheel of the nation.

Also, as usual, Senator Ron Wyden and other privacy-focused legislators have offered their own opposition to clean renewals of surveillance powers. Section 702 expires at the end of the year, and these legislators hoped to head that off by introducing an expansive set of reforms that might force 702 to be a bit more constitutionally compliant.

The Government Surveillance Reform Act — sponsored by Roy Wyden, Mike Lee, Warren Davidson, and Zoe Lofgren — would have altered the most often-abused aspects of Section 702 surveillance authorities.

The bill’s reforms include: 

• Protecting Americans from warrantless backdoor searches, ensuring that foreigners aren’t targeted as a pretext for spying on the Americans with whom they are communicating, and prohibiting the collection of domestic communications.
• Extending similar reforms to surveillance activities under Executive Order 12333, including by limiting warrantless searches of Americans’ communications and prohibiting the targeting of foreigners as a pretext for surveilling Americans. It also limits the acquisition of Americans’ information as part of large datasets.
• Requiring warrants for surveillance of Americans’ location data, web browsing and search records, including AI assistants like Alexa and Siri, vehicle data and by prohibiting the government from purchasing Americans’ data from data brokers.
• Exceptions to ensure the government can continue to use Section 702 for defensive cybersecurity purposes, to assist in locating and rescuing hostages overseas and emergency provisions in cases where there isn’t sufficient time to get a warrant in advance. 

Those reforms would hopefully deter the FBI’s abuse of these powers, as well as introduce a host of new protections for Americans’ data, no matter which third party is doing the collection. The Third Party Doctrine would have been significantly altered by this effort, codifying protections the federal court system has been extremely reluctant to extend to the people paying their salaries in hopes of seeing it act as a check on government power.

But this effort, which has garnered the support of nearly 20 legislators and nearly two dozen rights groups, no longer matters. At least not for the moment. There’s a chance this bill could become law in the future, but it appears 2023 will come to a close like it has every year has since these powers were first introduced: with a clean re-authorization of controversial, constantly abused surveillance powers.

As Dell Cameron reports for Wired, the Senate has effectively taken Section 702 off the legislative playing field. With the year closing out, federal legislators must pass a budget bill to keep the government operational. And, as is always the case with “must-pass” bills, legislators are scurrying to attach their pet projects to a bill that has to be approved to keep thousands of government employees employed and hundreds of government services operational.

A senior congressional aide tells WIRED that leadership offices and judiciary sources have both disclosed that discussions are underway about saving the Section 702 program in the short term by attaching an amendment extending it to a bill that is sorely needed to extend federal funding and avert a government shutdown one week from now.

A zero-reform extension of Section 702 is now attached to the budget bill like a privacy-destroying remora. And while it’s sure to generate some opposition from those opposed to clean re-authorization (including several Republicans), it’s unlikely to be detached if doing so means a government shutdown.

Once again, the discussion is no longer about whether or not the powers are justified or often abused. Instead, it just more of the same old partisan bullshit with a powerful Democrat attaching the rider to the budget bill while less powerful Republicans (at least in this instance) offer up ineffective opposition.

An aide to Jim Jordan, the Republican chair of the House Judiciary Committee, said Jordan was firmly on the side of the reformers and would not support extending 702 through a temporary measure. Chuck Schumer, the senate majority leader, did not respond to a request for comment Thursday afternoon.

This opposition might be vocal, but it’s hardly useful. Republicans are no more willing than Democrats to be seen as the driving force behind a government shutdown. And both parties have used this tactic — the attachment of something reprehensible to yearly budget bills — to push legislative agendas past their political opponents.

And that means a power that is supposed to be used to target foreign subjects of interest will continue to be used to engage in domestic surveillance.

While the NSA is not allowed to target the communications of “US persons” (an umbrella term for US citizens, legal residents, and corporations), the government has long been permitted to query the database for information on US persons without obtaining warrants.

Status quo has always been the name of the game. While these powers may experience periodic resistance, at the end of the day both parties (not counting those whose opposition has been loud and sustained) want the Executive Branch to have these powers available. Even if it sucks that their opponents are presiding over them at the moment, the next election could swing power the other way, giving them the opportunity to helm the USS Surveillance. As long as surveillance authorities continue to be politically useful, we can expect the same sort of futile, often meaningless pushing and pulling the next time they’re up for renewal.