The Senate on Thursday advanced House-passed legislation that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act, just a day before the key U.S. surveillance tool is set to expire without congressional action. 

What You Need To Know

  • The Senate on Thursday advanced House-passed legislation that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act
  • The bipartisan legislation would reform and extend Section 702, which U.S. officials say is vital to preventing terrorism, catching spies and disrupting cyberattacks
  • A bill renewing the program passed the House last week after a dramatic showdown on the floor over whether the FBI should be restricted from using the program to search for Americans’ data 
  • The same concerns that nearly derailed the bill in the House are flaring again in the Senate, with both progressives and conservative lawmakers agitating for further changes

The bill cleared the procedural step that allowed it to advance in the upper chamber by a vote of 67-32. 

The bipartisan legislation would reform and extend Section 702, which U.S. officials say is vital to preventing terrorism, catching spies and disrupting cyberattacks. 

A bill renewing the program passed the House last week after a dramatic showdown on the floor over whether the FBI should be restricted from using the program to search for Americans’ data. Speaker Mike Johnson, R-La., shortened the length of the extension from five years to two in order to win support from some Republicans critics of the legislation. 

The Biden administration, which backs the House-passed bill that is currently in the Senate, called on the upper chamber to “quickly send the bill to the President’s desk.” 

“This legislation, which passed the House with robust bipartisan support, ensures that the U.S. government has the tools to protect our national security, while dramatically enhancing protections for privacy and civil liberties,” National Security Advisor Jake Sullivan said. “We call on the Senate to quickly send the bill to the President’s desk.”

But the same concerns that nearly derailed the bill in the House are flaring again in the Senate, with both progressives and conservative lawmakers agitating for further changes. It's a dynamic that could ultimately jeopardize the bill's passage in the upper chamber, though supporters remain optimistic that the program will be reauthorized without much deal.

The Biden administration has spent the week on Capitol Hill providing classified briefings to senators on the crucial role they say the spy program plays in protecting national security. Officials warn that some of the changes being proposed to the tool could handicap the FBI’s efforts to thwart threats to the U.S.

Opponents remain unfazed and have demanded that Senate Majority Leader Chuck Schumer allow votes on amendments to the legislation that would seek to address what they see as civil liberty loopholes in the bill.

“The administration is making the case that if there’s any changes, it’s going to jeopardize the program," Democratic Sen. Peter Welch of Vermont said Thursday. “That’s asking a lot of the Senate to basically abdicate its responsibility.”

The legislation in its current form has the backing of not only the Biden administration but also the leaders of the national security committees in Congress, who have urged detractors to accept the mild reforms to the program. Sen. Marco Rubio, the top Republican on the Senate Intelligence Committee, said that the changes being proposed by the various groups are “unnecessary” and would “destroy the purpose” of the program.

“If certain amendments like that were to pass, the bill would go back to the House and I just don’t know what posture the House is going to be in to be able to take up legislation because we’ve got so much going on,” Rubio said.

Though the spy program is technically set to expire Friday, the Biden administration has said it expects its authority to collect intelligence to remain operational for at least another year, thanks to an opinion earlier this month from the Foreign Intelligence Surveillance Court, which receives surveillance applications.

Still, officials say that court approval shouldn’t be a substitute for congressional authorization, especially since communications companies could cease cooperation with the government if the program is allowed to lapse.

Overall skepticism of the government’s spy powers has grown dramatically in recent years, particularly on the right. Former President Donald Trump urged the GOP to “KILL FISA” in a post on his social media site. Johnson’s move to shorten the extension from two years to five means Trump would have influence over the next reauthorization should he won the White House in November. 

First authorized in 2008, the spy tool has been renewed several times since then as U.S. officials see it as crucial in disrupting terror attacks, cyber intrusions and foreign espionage. It has also produced intelligence that the U.S. has relied on for specific operations.

But the administration’s efforts to secure reauthorization of the program have repeatedly encountered fierce, and bipartisan, pushback, with Democrats like Sen. Ron Wyden who have long championed civil liberties aligning with Republican supporters of former President Donald Trump, who in a post on Truth Social on Wednesday stated incorrectly that Section 702 had been used to spy on his presidential campaign.

A specific area of concern for lawmakers is the FBI’s use of the vast intelligence repository to search for information about Americans and others in the U.S. Though the surveillance program only targets non-Americans in other countries, it also collects communications of Americans when they are in contact with those targeted foreigners.

In the past year, U.S. officials have revealed a series of abuses and mistakes by FBI analysts in improperly querying the intelligence repository for information about Americans or others in the U.S., including about a member of Congress and participants in the racial justice protests of 2020 and the Jan. 6, 2021, riot at the U.S. Capitol.