Bipartisan efforts are reportedly underway among U.S. congressional leaders to salvage the controversial Section 702 surveillance program, with a last-minute provision possibly slipping into the crucial National Defense Authorization Act (NDAA). Private talks between Republican and Democratic leaders, leaking late last week, have raised concerns about House Speaker Mike Johnson and Senate Majority Leader Chuck Schumer attempting to revive Section 702 without the support of their party members.
Section 702, part of the Foreign Intelligence Surveillance Act (FISA), has faced criticism for its alleged misuse by the FBI, allowing warrantless access to the communications of various groups, including protesters, activists, donors, journalists, and even members of Congress.
The American Civil Liberties Union (ACLU) is urging Congress to reconsider reauthorizing Section 702 in the NDAA. In a letter co-signed by 30 civil society groups, the ACLU opposes any attempt to include this authority in ‘must-pass’ legislation.
According to Kia Hamadanchy, senior policy counsel at the ACLU, using the NDAA to reauthorize Section 702 without full legislative scrutiny betrays the public’s trust. Hamadanchy warned that the ACLU will oppose the legislation if the NDAA includes an extension allowing Section 702 to persist beyond April 2024 without fundamental reforms. “To use the NDAA to reauthorize a mass spying program that has been so flagrantly abused without going through the full legislative process and robust debate betrays the public’s trust,” Hamadanchy said. “If congressional leadership includes an extension that allows Section 702 to continue to operate beyond April 2024 (and which does not include fundamental reforms) the American Civil Liberties Union will have no choice but to oppose the NDAA and score the vote. Members must reverse course before it’s too late.”
Elizabeth Goiten, ‘senior director of liberty, and national security’ at the Brennan Center for Justice added historical context. After 9/11, the government sought to evade FISA’s constraints by claiming inherent executive authority. Goiten stressed the importance of addressing gaps in FISA’s exclusivity provision, preventing the government from obtaining sensitive data without legal restrictions and bypassing oversight.
“There is ample reason for concern that the government is exploiting these gaps to collect some of the most sensitive data Americans generate without adhering to FISA’s requirements, including by purchasing it from data brokers,” Goiten said. “Congress should fill the holes in FISA’s exclusivity provision and bar the government from buying its way around FISA and other legal restrictions on governmental access to Americans’ data.”