The Surveillance Bill Showdown That Fizzled

While it is frustrating that Congress ignored the urgent need for significant Section 702 reform before the December 31 deadline, reform advocates should not lose hope.

By India McKinney, Electronic Frontier Foundation

Like the weather rapidly getting colder outside, the fight over renewing, reforming, or sunsetting the mass surveillance power of Section 702 has been put on ice until spring.

In the last week of legislative business before the winter break, Congress was scheduled to consider two very different proposals: H.R. 6570, the Protect Liberty and End Warrantless Surveillance Act in House Judiciary Committee (HJC); and H.R. 6611, the FISA Reform and Reauthorization Act of 2023 in the House Permanent Select Committee on Intelligence (HPSCI), to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA). However, as the conversation about how to consider these proposals grew heated, both bills have been pulled from the legislative calendar without being rescheduled.

The legislative authority for Section 702 was set to expire December 31, 2023, though language was added to the National Defense Authorization Act (NDAA) to extend the legislative authority of Section 702 through April 2024. It is disappointing that, despite all of the reported abuses of the Section 702 program, Congress chose to pass a reauthorization bill instead of making the necessary effort to include critical reforms. As advocates for reform, including EFF, said in a letter to Congress in late November, bypassing the discussion around reform by slipping an extension of the law into the defense authorization bill during conference demonstrates a blatant disregard for the civil liberties and civil rights of the American people.

While it is frustrating that Congress ignored the urgent need for significant Section 702 reform before the December 31 deadline, reform advocates should not lose hope. The current stalemate also means that the pro-surveillance hardliners of the intelligence community were not able to jam through their expansion of the program based on the same old scare tactics they’ve used for years. Fortunately, it seems that many members of the House and Senate have heard our message. While renewing any surveillance authority remains a complicated and complex issue, this choice is clear: we continue to urge all Members to oppose the Intelligence Committee’s bill, H.R.6611, the FISA Reform and Reauthorization Act of 2023.

Additionally, in the moments leading up to a possible floor vote, many House members (and some Senators) have made public statements calling for reform. Notably, that list includes the current House Speaker, Mike Johnson, who told Fox News that Section 702 “… was also abused by the FBI, by our own government, over almost 300,000 times between 2020 and 2021, and so the civil liberties of Americans have been jeopardized by that. It must be reformed.”

So, while we are disappointed that Congress chose to leave for the holidays without enacting any of these absolutely necessary reforms, we are already making plans to continue this fight in the New Year. We are also grateful for the calls and emails from our members and supporters; these have absolutely made an impact and will be more important than ever in the fight to come.