Update, 4:00pm: President Trump in a tweet Friday afternoon said that he had signed the FISA bill into law, renewing the Section 702 warrantless surveillance program.
In a 65-34 vote on Thursday, the US Senate voted to reauthorize a controversial warrantless surveillance program intended to grant American spy agencies the authority to collect emails and phone records of foreigners abroad. As critics of the program point out, however, it also frequently results in the collection of domestic communications belonging to US citizens.
A reauthorization bill was passed by the House last week in a 256-164 vote. It now goes to the White House for a signature from President Trump, who is expected to sign the bill.
The battle over the surveillance program, known as Section 702, was a contentious one, particularly in the Senate where yesterday three Democrats and two Republicans attempted a filibuster.
The effort, which failed, was led by Senators Ron Wyden (D) and Rand Paul (R), both cosponsors of the USA Rights Act, which had offered amendments to the surveillance bill furnishing new privacy protections for Americans, which were opposed by the White House.
While proponents of Section 702 argue that the program is an absolute necessity for national defense, many critics—who do not entirely disagree—say the bill in its current form is a threat to Americans’ privacy.
In support of Section 702's passage, Senate Majority Leader Mitch McConnell said in a statement, “Let’s be very clear about what Section 702 does: It enables our intelligence community to collect communications from foreign terrorists, on foreign soil, who threaten America and our allies.” However, McConnell and other Section 702 proponents obscure the warrantless surveillance of Americans that the program enables.
National security reporter and leading Section 702 expert Marcy Wheeler tweeted on Thursday, for instance, that the National Security Agency (NSA) uses the program to collect “data it knows to include domestic [communications].”
Wheeler previously warned that the bill codifies under law exceptions offered in 2014 by the Foreign Intelligence Surveillance Court that threaten Americans who use Tor, the anonymity software popular among journalists, whistleblowers, and political dissidents the world over.
With regard to the collection of Tor-related traffic, Wheeler wrote Thursday:
NSA has to sort through what they collect on the back end, but along the way, they get to decide to keep any entirely domestic traffic they find has significant foreign intelligence purpose or is evidence of a crime, among other reasons. The bill even codifies 8 enumerated crimes under which they can keep such data. Some of those crimes — child porn and murder — make sense, but others — like transnational crime (including local drug dealers selling imported drugs) and CFAA (with its well-known propensity for abuse) pose more potential for abuse.
Sen. Ron Wyden, a Democratic member of the Senate Select Committee on Intelligence, described passage of the Section 702 reauthorization bill as a “dereliction of duty by Congress.”
“It is worse than business-as-usual: It explicitly authorizes warrantless searches of law-abiding Americans, allows for the collection of communications entirely among innocent Americans who reference the wrong foreigner, and gives the attorney general unchecked power to decide when the government can use what it finds against us, to pick just three of its many troubling provisions,” he said in a statement.
FreedomWorks, the influential Tea Party political action committee, echoed Wyden’s concerns for privacy and urged President Trump to veto the bill, saying in a statement: “We’re disappointed with the passage of the FISA Amendments Reauthorization Act and the misleading statements supporters of the bill made about the collection of communications, the process by which these records are obtained by the FBI, and the alternatives offered by privacy-minded members of the House and Senate like Justin Amash, Mike Lee, Rand Paul, and others.”