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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowU.S. lawmakers on Thursday approved a 45-day reprieve for the controversial electronic-surveillance program known as Section 702, acting hours before U.S. spy agencies’ authority would have been thrown into limbo.
The vote was the latest near-death experience for the Foreign Intelligence Service Act’s 702 program, which allows the government to collect from U.S. communications firms the texts, emails and phone calls of foreigners living overseas, without a warrant. Those intercepts sometimes collect data from communications involving U.S. citizens.
Conservative Republicans, privacy advocates, as well as a diverse group of Democratic lawmakers suspicious of President Donald Trump, have demanded further reforms to the program, which has been marred by occasional abuses and which critics say violates the Fourth Amendment’s prohibition of warrantless searches.
Lawmakers now have until mid-June to decide if further changes are needed and whether they want to grant a multiyear reauthorization of the program, which the House had approved on Wednesday.
The intelligence collected under Section 702 of the Foreign Intelligence Surveillance Act, or FISA, is a vital and irreplaceable source of information, U.S. intelligence officials say, representing large portions of the highly classified President’s Daily Brief given to Trump and his national security team each day.
A CIA fact sheet issued in early April said that 702 helped U.S. authorities prevent a terrorist attack at a Taylor Swift concert in Austria, pinpoint the Mexican drug kingpin known as “El Mencho,” and seize a chemical shipment from China that would have produced millions of fentanyl pills.
Congress agreed on April 17 to extend the law for 10 days after a group of House Republicans concerned about civil liberties refused to give the program a longer leash. That extension was due to expire at midnight Thursday.
A secret court that oversees FISA in March approved Trump administration certifications, allowing the electronic surveillance to continue for a year even if Congress did not renew the program. But without legislative cover, U.S. telecommunications firms might balk at furnishing the data for fear they might be sued, Section 702 proponents say. Such a lapse has never happened since the program was enshrined in law in 2008.
The month-and-a-half extension Thursday was preceded by feisty debates in both chambers of Congress.
Sen. Ron Wyden (D-Oregon), a longtime critic of domestic spying, proposed a three-week extension while demanding that the Trump administration declassify a secret surveillance court opinion that found potential shortfalls in how analysts search the vast electronic haul acquired under the program.
“The Congress should not vote … to renew Section 702 while Americans are left in the dark about these troubling abuses,” Wyden said on the Senate floor.
The problem identified by the court relates to an advanced filter that helps analysts sort through large amounts of data acquired with each query, according to a person familiar with the matter, who spoke on the condition of anonymity because of the subject’s sensitivity. Though the filtering capabilities are not aimed at U.S. persons, they could be used to access large amounts of U.S. information, this person said.
Sen. Tom Cotton (R-Arkansas), chairman of the Senate Intelligence Committee, accused Wyden of exaggerating the problem. “Every few years we come down here and have this debate,” Cotton said. “We shouldn’t let it go dark tonight.”
In the end, Cotton and Sen. Mark R. Warner (D-Virginia), the Senate Intelligence Committee’s top Democrat, agreed to press the Trump administration to declassify the secret court opinion within 15 days.
The Senate acted first on the 45-day extension after refusing to consider a three-year 702 extension approved by the House on Wednesday. The House bill included a largely unrelated ban on establishing a Central Bank Digital Currency, which conservatives and civil libertarians say would allow the government to surveil Americans’ financial transactions.
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