Congress voted Thursday to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) with no reforms as part of the National Defense Authorization Act, or NDAA.

Section 702 of FISA is a tool that intelligence officials have allegedly abused as it enables them to surveil Americans without obtaining a warrant. After the Senate passed FISA through the NDAA on Wednesday and failed to get sufficient support to eliminate the four-month extension, the House of Representatives finalized it in a vote on Thursday.

If six Republican senators had opposed a point of order against the NDAA on Wednesday, then FISA would not have passed, potentially expiring at the end of December. FISA’s Section 702 allows intelligence agencies to gather incidental data on Americans while targeting foreign individuals, generating concern over improper spying on U.S. citizens.

The provision will now be extended through April. Having cleared Congress, the NDAA’s last step will be to President Joe Biden’s desk for his signature.

Two bills to reform FISA had been anticipated to come to the House floor for a competing vote on Tuesday, but Republicans fought over it, causing a cancellation late on Monday, The New York Times reported. As a result, FISA is passing with no reform and the bills probably will not receive a vote until 2024.

The House Judiciary Committee introduced one of them — Republican Arizona Rep. Andy Biggs’ Protect Liberty and End Warrantless Surveillance Act (PLEWSA) — that would limit the government’s power under Section 702 by mandating a warrant for almost all searches of Americans, according to its text.

Conversely, the House Intelligence Committee has put forward a bill dubbed the FISA Reform and Reauthorization Act of 2023, that would change the definition of “electronic service communications provider” to contain ‘‘equipment that is being or may be used to transmit or store such communications.’’ This would consist of any entity or business that provides an internet connection, thereby massively increasing domestic surveillance authorities under FISA, according to experts.

Privacy advocates support PLEWSA while former national security officials support the FISA Reform and Reauthorization Act of 2023.

Jason Cohen on December 14, 2023

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