Senate OKs reauthorization of key U.S. surveillance program

Sen. Marco Rubio speaks with reporters at the Capitol in Washington.

By Farnoush Amiri and Mary Clare Jalonick

April 20, 2024 1:18 PM PT

WASHINGTON — President Biden on Saturday signed legislation reauthorizing a key U.S. surveillance law after divisions over whether the FBI should be restricted from using the program to search for Americans’ data nearly forced the statute to lapse.

The legislation that was approved 60 to 34 with bipartisan support would extend for two years the program known as Section 702 of the Foreign Intelligence Surveillance Act.

“In the nick of time, we are reauthorizing FISA right before it expires at midnight,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said when voting on final passage began 15 minutes before the deadline. “All day long, we persisted and we persisted in trying to reach a breakthrough, and in the end, we have succeeded.”

U.S. officials have said the surveillance tool, first authorized in 2008 and renewed several times since then, is crucial in disrupting terror attacks, cyber intrusions and foreign espionage and has also produced intelligence that the U.S. has relied on for specific operations, such as the 2022 killing of Al Qaeda leader Ayman al-Zawahri.

“If you miss a key piece of intelligence, you may miss some event overseas or put troops in harm’s way,” Sen. Marco Rubio of Florida, the top Republican on the Senate Intelligence Committee, said. “You may miss a plot to harm the country here, domestically or somewhere else. So in this particular case, there’s real-life implications.”

The program permits the U.S. government to collect without a warrant the communications of non-Americans located outside the country to gather foreign intelligence. The reauthorization faced a long and bumpy road to final passage Friday after months of clashes between privacy advocates and national security hawks pushed consideration of the legislation to the brink of expiration.

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

Still, officials had said 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.

Before the law was set to expire, U.S. officials were already scrambling after two major U.S. communication providers said they would stop complying with orders through the surveillance program, according to a person familiar with the matter, who spoke on condition of anonymity to discuss private negotiations.

Atty. Gen. Merrick Garland praised the reauthorization and reiterated how “indispensable” the tool is to the Justice Department.

“This reauthorization of Section 702 gives the United States the authority to continue to collect foreign intelligence information about non-U.S. persons located outside the United States, while at the same time codifying important reforms the Justice Department has adopted to ensure the protection of Americans’ privacy and civil liberties,” Garland said in a statement Saturday.

But despite the Biden administration’s urging and classified briefings to senators last week on the crucial role they say the spy program plays in protecting national security, a group of progressive and conservative lawmakers had refused to accept the version of the bill the House sent over earlier.

The lawmakers had demanded that Schumer allow votes on amendments to the legislation that would seek to address what they see as civil liberty loopholes in the bill. In the end, Schumer was able to cut a deal that would allow critics to receive floor votes on their amendments in exchange for speeding up the process for passage.

The six amendments ultimately failed to garner the necessary support to be included in the final bill.

One of the major changes detractors had proposed centered on restricting the FBI’s access to information about Americans through the program. Though the surveillance tool targets only non-Americans in other countries, it also collects communications of Americans when they are in contact with those targeted foreigners. Sen. Richard J. Durbin of Illinois, the No. 2 Democrat in the chamber, had been pushing a proposal that would require U.S. officials to get a warrant before accessing American communications.

“If the government wants to spy on my private communications or the private communications of any American, they should be required to get approval from a judge, just as our Founding Fathers intended in writing the Constitution,” Durbin said.

In the last 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 a member of Congress and participants in the racial justice protests of 2020 and the Jan. 6, 2021, riot at the U.S. Capitol.

But members on the House and Senate intelligence committees as well as the Justice Department warned that requiring a warrant would severely handicap officials from quickly responding to imminent national security threats.

“I think that is a risk that we cannot afford to take with the vast array of challenges our nation faces around the world,” Sen. Mark R. Warner (D-Va.), chair of the Senate Intelligence Committee, said Friday.

Amiri and Jalonick write for the Associated Press. AP writer Eric Tucker contributed to this report.