For the third time since December, House Speaker Mike Johnson has failed to win support for reauthorizing a critical U.S. surveillance program, raising questions about the future of a law that forces certain companies to hire foreigners on behalf of the government to listen.
Johnson lost 19 Republicans on Tuesday in a procedural vote that traditionally falls along party lines. The Republicans control the House of Representatives, but only by a razor-thin margin. The failed vote came just hours after former US President Donald Trump ordered Republicans to “kill FISA” in a 2 a.m. post on Truth Social, referring to the Foreign Intelligence Surveillance Act, under which the program is approved.
The Section 702 surveillance program, which targets foreigners abroad while crippling much of U.S. communications, is set to expire April 19. The program was extended for four months in late December after Johnson’s first attempt to hold a vote failed.
Congressional sources tell WIRED they have no idea what the next steps will be.
The program itself will continue next year, regardless of whether Johnson can secure another vote next week. Congress does not directly authorize surveillance. Instead, the U.S. intelligence community can obtain annual “certificates” from a secret surveillance court.
The Justice Department applied for new certifications in February. Last week it was announced that they had been approved by the court. However, the government’s authority to issue new policies under the program without congressional approval remains questionable.
The certifications, which are only required due to the “incidental” answering of US calls, generally allow the program to be used in cases involving terrorism, cybercrime and weapons proliferation. U.S. intelligence officials have also touted the program as crucial to combating the flood of fentanyl-related substances entering the U.S. from overseas.
The program remains controversial because of a long list of abuses, particularly at the Federal Bureau of Investigation, which maintains a database containing some of the raw data collected under 702.
Although the government says it only targets foreigners, it has admitted that it collected a large amount of U.S. communications in the process. (The actual amount cannot be calculated.) Nevertheless, it is argued that once these communications are in the government’s possession, it is constitutional for federal agents to review these wiretaps without a warrant.
An unlikely coalition of progressives and conservative lawmakers formed last year to end these warrantless searches. Many Republicans joined in vocally criticizing the FBI after it misused FISA in 2016 to target a Trump campaign staffer. (The 702 program, which is just part of FISA, was not involved in this particular controversy.)
Privacy experts have criticized proposed changes to the Section 702 program, which were advocated by members of the House Intelligence Committee as well as Johnson, who previously voted for a warrant requirement although he now opposes it.
“It appears that congressional leadership needs to be reminded that these privacy protections are overwhelmingly popular,” said Sean Vitka, policy director at Demand Progress, a nonprofit focused on civil rights. “Surveillance reformers remain willing and able to do this.”
A group of lawyers – one of the few to have ever argued arguments before the Foreign Intelligence Surveillance Court – said in a statement Tuesday that a change proposed by the Intel committee risks reducing the number of U.S. companies willing to cooperate forced to increase dramatically with the program.
Declassified documents released by the FISA court last year showed that the FBI had abused the 702 program more than 278,000 times, including, as reported by The Washington Postagainst “crime victims, suspects in the Jan. 6 riots, people arrested during protests following the police killing of George Floyd in 2020, and — in one case — 19,000 donors to a congressional candidate.”
James Czerniawaski, a senior policy analyst at Americans for Prosperity, a Washington, D.C., think tank that advocates for changes to Section 702, says that despite recognizing its value, it remained a “difficult program” in need of “significant and meaningful reform.” requirement.
“Today’s outcome was entirely avoidable,” he says, “but it requires that the intelligence community and its allies realize that their days of irresponsible and unconditional spying on Americans are over.”