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Key surveillance powers granted to U.S. intelligence agencies for collecting information and monitoring national security threats outside the U.S. are set to expire unless Congress reauthorizes them before the end of the year, and finding consensus won't be easy.
Known as FISA Section 702, the crucial component of the Foreign Intelligence Surveillance Act allows the U.S. intelligence community to conduct surveillance of non-U.S. persons of foreign intelligence interest who are located outside of the U.S.
Section 702 was last reauthorized in 2012 without any reforms in the FISA Amendments Act, over the protests of privacy advocates.
But Sen. Rand Paul (R-Ky.) told Independent Journal Review in an interview Wednesday that reauthorizing Section 702 without enhanced privacy protections won't be as simple this time around.
“We'll do anything we can to try and stop it, and that includes filibuster,” Paul said.
That doesn't jibe with the surveillance-friendly position of most Republicans, such as Sen. Tom Cotton (R-Ark.), who recently introduced a bill to make the Section 702 powers permanent. But the reauthorization will be subject to a 60-vote threshold for passage, and there are only 52 Republicans in the Senate. Majority Leader Mitch McConnell (R-Ky.) will have to court Democrats for support.
Paul said he expects to team with Sen. Ron Wyden (D-Ore.) and others to buck leadership and push for changes to the law, such as requiring intelligence agencies to obtain a warrant before searching databases for information on American citizens incidentally collected under Section 702 surveillance of non-U.S. persons.
He told IJR there may be more lawmakers opposed to reauthorizing Section 702 unchanged this year than in the past for a few reasons:
- First, he noted there may be more pushback from his colleagues on the other side of the aisle because “the Democrats tend to be more unified now that there's an opposite party at the White House.”
- Second, Paul argued that some Republicans, such as House Intelligence Committee Chairman Devin Nunes (R-Calif.), may have shifted their stance on Section 702 after President Donald Trump repeatedly accused the Obama administration of surveilling and unmasking members of his presidential campaign without evidence in the spring.
“If we truly get a coalition, could we get to 40 [votes]?” Paul wondered. “There is a possibility there.”
Intelligence officials argue the program adequately protects the privacy of Americans and are emphatic Section 702 plays an indispensable role in preventing terror attacks at home and abroad, along with supporting other national security operations.
“Failure to reauthorize Section 702 will deprive the intelligence community of a critical tool to combat global proliferation efforts at a time when North Korea is working day and night to build a nuclear-tipped ICBM capable of hitting the United States," Dean Boyd, director of public affairs at the Central Intelligence Agency, told IJR this week.
“Section 702 is not a ‘nice-to-have.' It is a ‘must-have,'” Boyd said.
But while 702 reauthorization is at the forefront of the intelligence community's mind, it's on the back burner for Congress: Lawmakers will have a full plate when they return from their month-long August recess after Labor Day.
Between raising the debt ceiling, passing a budget resolution in order to proceed with GOP tax reform plans, and passing appropriations bills to keep the government up and running — complete with a looming government shutdown fight over funding for Trump's proposed border wall between the U.S. and Mexico — it's sure to be a busy fall.
Matt Tait, a former information security specialist at the British intelligence agency, GCHQ, and senior fellow in cybersecurity at the Robert Strauss Center for International Security and Law at the University of Texas at Austin, told IJR he half expects Section 702 not to be reauthorized by the Dec. 31 deadline because the White House hasn't been actively shepherding the effort through Congress.
Tait noted U.S. intelligence agencies such as the National Security Agency have been recently putting out statements about how important the powers provided by Section 702 are to them.
“That’s a little bit conspicuous that they’re doing this on their own backs,” he said. “They’re not doing this through the White House, which suggests to me there’s some dysfunction in how they’re trying to get it reauthorized.”
Apart from perceived dysfunction, Paul described the administration's position as “perplexing” because Trump has been critical of the intelligence community and sympathetic to his position on the issue.
“On the other hand, most of the people [Trump has] appointed [...] are great advocates of unlimited power for surveillance agencies,” Paul said.
Thomas Bossert, Trump's homeland security and counterterrorism adviser, penned an op-ed in The New York Times in June endorsing Cotton's bill to permanently reauthorize Section 702. In the same essay, Bossert shot down Paul's demands.
“Imposing a warrant requirement to conduct such data queries, as some in Congress have proposed, would be legally unnecessary and a step toward re-erecting pre-9/11 barriers to our ability to identify foreign terrorists and their contacts,” he wrote.
But because Republicans need Democratic support, a permanent authorization isn't sure to pass. If Section 702 is reauthorized before Dec. 31, Tait said, he expects it to be another short-term flat reauthorization without any substantive policy changes.
When IJR asked if he would support such a reauthorization, Paul answered, “Absolutely not.”
Paul didn't flinch about the possibility of allowing the intelligence program to lapse.
It wouldn't be the first instance in which Congress failed to authorize a surveillance program on time — three intelligence programs reauthorized by the USA Freedom Act had to be shut down for a period in 2015 when the Senate didn't pass the legislation on time.
Section 702 is a much larger program, though, and shutting it down would have a greater impact not only at home, but also abroad among allies who depend on U.S. intelligence analysis.
“A surveillance program shouldn’t be shut off just because Congress can’t get their sh*t together,” Tait said. “If that happens with 702, it’s going to cause dramatically more serious problems across the intelligence community.”