The House of Representatives failed to renew the US government’s warrantless surveillance law before it expired on Friday, but it is guaranteed to expire for the first time as lawmakers protest the appointment of a controversial Trump ally to oversee US intelligence agencies.
The House voted 218-198 on the bill, which needed a two-thirds majority to pass. 19 Republican lawmakers voted against it. According to Politico, the next vote is is scheduled for June 23.
The Espionage Act, officially called the Foreign Intelligence Surveillance Act (FISA), broadly allows US intelligence agencies to collect vast amounts of information, including on Americans, to track down foreign hackers, spies and potential terrorists. Also known as Section 702 for its place on the law books, the regulation has been considered critical to national security by both Democrats and Republicans for years.
Bipartisan efforts to renew the decades-old spy law have stalled in recent weeks, and lawmakers have been able to pass only short-term extensions to keep negotiations going.
Critics have called for sweeping reform of FISA, citing violations of the law by several previous US administrations. Lawmakers from both parties had sought provisions that would have required spy agencies to first obtain a court-approved warrant before being allowed to access Americans’ private communications, though the Trump administration had sought a clean reauthorization of the law.
But a new obstacle emerged last week for the Trump administration, when the president appointed one of his allies, Bill Pulteas deputy director of the US National Intelligence Service. The cabinet-level post oversees the government’s dozen-plus spy agencies, including the Central Intelligence Agency and the National Security Agency.
The appointment sparked fears that Pulte would use the position attack Trump’s political opponents and guts the top intelligence office which he would oversee. Politico reports that Pulte’s appointment was a “clear sign of the recent mood” within the White House, and Trump described as he becomes increasingly isolated and driven by grievances.
Democrats had warned that appointing Pulte would be a greater risk to US national security than allowing the law to lapse, according to The Washington Post.
Pulte, who has no intelligence or national security experience, was appointed to start of work on June 19alongside his current role as head of a US federal housing agency. But on Thursday, the administration withdrew Pulte’s nomination and replaced him in the role with Jay Clayton, who currently serving as U.S. Attorney for the Southern District of New York and previously headed the Securities and Exchange Commission.
But by the time news of Clayton’s appointment broke, many lawmakers had already left the capital for a weeklong recess, making any last-minute deal to save FISA unlikely.
Beating fiber cables and tech titans
FISA Section 702 came into focus during a 2013 surveillance scandal involving the National Security Agency and several close US allies. Former NSA contractor-turned-whistleblower Edward Snowden leaked thousands of documents to reporters, revealing the scope of the US’s global surveillance operations, which included Americans even though they are said to be largely constitutionally exempt from US surveillance.
Using programs authorized under Section 702, the NSA used these legal powers to collect vast amounts of global communications flowing through undersea fiber optic cables, which form the backbone of the Internet. The NSA also had access to extensive swathes of user data from tech giants like Apple, Facebook, Google and Microsoft under a program called PRISM.
While the law itself will expire on Friday, the US government’s spying powers or programs are unlikely to end anytime soon.
The spying programs authorized under FISA were already approved in March as part of an annual certification process by the Washington-based Foreign Intelligence Surveillance Court, or FISC, which oversees government surveillance programs and hears applications for secret surveillance. US authorities can still use their surveillance tools under FISA until March 2027, allowing many of the government’s mass surveillance programs to continue operating.
But the phone companies that provide rolling logs of calls made by their customers to the government they may be reluctant to share that information without a clear law allowing them to do so, according to Reuters.
However, the US government has other avenues of surveillance it can fall back on, such as Executive Order 12333, which allows the government almost unlimited powers to conduct surveillance around the world.
Bipartisan lawmakers continue to warn of FISA abuses, regardless. Earlier this year, Sen. Ron Wyden, a senior Democrat who has long served on the Senate Intelligence Committee, warned that FISA is still being actively used to covertly violate Americans’ constitutional rights.
Wyden, who is read about classified matters but can’t discuss them publicly, said lawmakers likely don’t know that many U.S. governments have relied on a secret interpretation of Article 702which “directly affects the privacy rights of Americans.”
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