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House looks to try again on surveillance authority reauthorization

Congress pushes up against April 19 expiration of Section 702 of FISA

FBI Director Christopher Wray prepares to testify Thursday during a House Appropriations subcommittee hearing.
FBI Director Christopher Wray prepares to testify Thursday during a House Appropriations subcommittee hearing. (Bill Clark/CQ Roll Call)

House lawmakers moved forward with another push to consider legislation that would reauthorize a powerful surveillance authority, the day after the House rejected a rule that would have set up the terms of floor consideration of the last version.

The House Rules Committee on Thursday approved a rule for floor consideration as soon as Friday on another version of legislation to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, which is set to expire April 19.

This latest version would reauthorize Section 702 for two years, among other changes. The previous version would have done so for five years.

Rep. Chip Roy, R-Texas, who had voted on the floor against the rule on the previous version of the bill, earlier Thursday said he liked progress that was being made on changes to the bill.

“We believe that’s all appropriately in the right direction enough that we’re increasingly optimistic, but we’re still having the conversation necessary, obviously, to get the votes,” Roy said.

The House has stumbled several times to get a floor vote on reauthorization, and on Wednesday a group of 19 Republicans voted against the previous rule amid concerns that it didn’t do enough to protect the privacy of Americans, among a mix of other concerns.

The Section 702 authority allows the U.S. government to collect digital communications of foreigners located outside the country. But the program has also been the subject of controversy because it sweeps up the communications of Americans and allows the FBI to search through data without a warrant.

Some Republicans who tanked the previous rule argued the bill that had been poised for a floor vote did not include a provision to require the government to get a warrant before searching for the information of Americans and Speaker Mike Johnson, R-La., tilted the debate against the warrant requirement.

Under the rule advanced Thursday night, there would be a vote on an amendment to add a warrant requirement to the reauthorization. Several House Republicans reiterated their support for the warrant requirement in posts Thursday night on social media.

The White House released a statement Thursday night that said the Biden administration “strongly supports” the reauthorization bill and “strongly opposes” an amendment that would add a warrant requirement.

Also on Thursday, FBI Director Christopher Wray made his pitch to lawmakers at a House Appropriations subcommittee hearing, once again praising Section 702 as a critical tool.

“Failure to reauthorize 702, or gutting it with some new kind of warrant requirement, would be dangerous and put Americans’ lives at risk,” Wray said.

That language drew the attention of Republican Rep. Ben Cline, R-Va., who responded that the intent of the law is designed to provide the information of foreign nationals, not American citizens.

Meanwhile, the Justice Department has told congressional leaders that the Foreign Intelligence Surveillance Court had taken action that would allow the program to continue to operate even if it is not reauthorized by April 19.

In a letter, DOJ officials said the FISC on April 4 had approved new certifications and procedures that provide the legal basis for compelling the assistance of U.S. service providers under Section 702. Those certifications remain in effect until April 2025, the agency said, but they do not “obviate the need for Congressional action.”

“A lapse in the statutory authority underlying these certifications could endanger the IC’s ability to use Section 702 to acquire valuable and timely foreign intelligence,” the Justice Department officials wrote. “In the event of a lapse, some providers are likely to stop or reduce cooperation with the legal process they receive.”

The Justice Department would return to the FISC within 90 days of Congress renewing Section 702 to get approval of new draft certifications and procedures “that reflect any new statutory requirements,” the DOJ officials wrote.

Sean Newhouse contributed to this report.

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