Strange bedfellows: critics left and right oppose warrantless wiretapping renewal

Congress is struggling to reauthorize key rules that govern National Security Agency wiretapping, without a warrant, of foreign targets outside the United States. The rules are set to expire at the end of the year, though the NSA believes it could legally continue the program through April while lawmakers continue to debate the subject. The House of Representatives is scheduled to vote on the issue Thursday. It’s unclear when or if the Senate will follow suit.

Q: What program is at issue?

The rules in question are set out in Section 702 of the Foreign Intelligence Surveillance Act. In US national security discussions they’re usually referred to as “Section 702” or “702” for short. Under this program, the National Security Agency (NSA) can vacuum up the electronic communications of foreign intelligence targets deemed likely to be located outside US territory. Officials don’t need a court-issued warrant for individual targets. Instead, the secret Foreign Intelligence Surveillance Court annually approves a list of proper categories of foreign intelligence collection.

Q: Is there a problem?

Section 702 surveillance efforts sometimes sweep up information on US citizens. This is supposed to be inadvertent: The citizens in question are communicating with foreign intelligence targets, say, or are merely mentioned by those targets. Given that Americans have greater legal rights than the foreign targets, how should information involving US citizens be handled? Under current law it is not discarded, and in some circumstances it can be used for law enforcement investigations. For instance, the Federal Bureau of Investigation (FBI) is allowed to search some of the data for national security and other purposes, using queries such as an email address or a name. But in general, the US material is supposed to be “minimized,” with identities shielded and access controlled.

Privacy advocates say the current protections are not sufficient and that changes should be made. One possible modification: requiring the FBI to obtain individualized warrants to view some query results.

Q: What are the politics?

NSA surveillance issues can be politically complicated, and the renewal of Section 702 is no exception. Privacy protection draws support from both the left and right sides of the US political spectrum, as it combines elements of liberalism and libertarianism. Seldom are the American Civil Liberties Union and the conservative House Freedom Caucus in agreement, but they are in this case. Neither group wants Section 702 to simply be re-upped as it stands, a so-called clean reauthorization.

Washington’s current polarized environment has added a layer of predictable partisanship on top of this mix. Earlier this year the chairman of the House Intelligence Committee, Rep. Devin Nunes (R) of California, said he had evidence that some Trump aides caught in the 702 dragnet had their names improperly revealed, or “unmasked,” to other government officials. Democrats have vehemently disputed this. It’s led to a situation where the GOP majority of the intelligence panel has pushed provisions to make unmasking more difficult. The Democratic minority, to this point, has been opposed.

Q: Where does the issue stand?

It’s been kind of a mess. The NSA and other security agencies are pushing for a clean reauthorization of the Section 702 program, which they say is an important tool for protecting the US from terrorists and other threats to national security. It was key in defusing a plot to detonate homemade bombs on the New York subway in 2009, said FBI Director Christopher Wray in October at a seminar on surveillance without warrants, held at the Heritage Foundation in Washington. It’s also been used to help the US understand Russian meddling in the 2016 US presidential election.

“Any material change to the FBI’s use of 702 would severely inhibit our ability to keep the American people safe,” Mr. Wray told the Heritage audience.

Clean reauthorization might have difficulty passing the House, however, because of the left-right combination of opposition. But it is unclear what sort of reauthorization could pass the House, as 702’s critics haven’t settled on a unified course of action for themselves.

The House is scheduled to vote on the issue Thursday now that the GOP’s big tax bill has passed and is out of the way. The bill that will be at issue on the floor says that the FBI “may” get a court order before reviewing information collected under Section 702 for criminal cases against Americans. It does not appear to require the FBI to take such a step, however. Critics worried about privacy protection are unlikely to be mollified by this language.

Q: Where will this end?

That remains unclear. The outcome of Thursday’s House vote is far from certain, as 702’s critics on both the right and left are likely to vote “no” on a bill they feel does not contain enough protections for US citizen privacy. Meanwhile, the Senate has no plans to vote on separate legislation. Senate leaders plan to incorporate some kind of 702 reauthorization language in the big budget bill the chamber will eventually have to pass to keep the government open in 2018. Senate leaders believe this might be a way to jam the issue through, at least for the short term.

As noted above, the program expires at the end of December. NSA lawyers believe that they will be able to legally continue 702 program surveillance under the authority of the secret Foreign Intelligence Surveillance Court until April. But they add that the uncertainty created by such an overtime situation could be a problem for US intelligence community planning.