Congressional Negotiations: The Battle Over Surveillance Reforms

Twice in the past decade, legislation limiting the United States government’s domestic surveillance powers sailed through the US House of Representatives. Attached to bills that would ultimately become law, both of these pro-privacy amendments were killed off in the final hours of consideration—erased each time in secret meetings held among a select group of congressional power brokers. Capitol Hill sources familiar with ongoing negotiations over a top US surveillance program fear House leaders may once again scrap popular civil-liberty-focused reforms.

Members of the House learned last week that high-level talks were taking place behind closed doors over the newest privacy reforms hoping to secure broad parliamentary backing. Following Politico’s initial disclosure of the talks, public reporting on the talks sparked a flurry of conjecture on the possibility that another agreement was quietly reached to continue a domestic surveillance program that was no longer thought to have the backing of most of Congress.

Sources with knowledge of ongoing negotiations over the future of Section 702—a controversial but pivotal US foreign surveillance program—say a host of pro-privacy reforms, including new warrant requirements for obtaining commercially available data, have gained serious traction among an anomalous coalition of progressives and conservatives otherwise at odds on most matters. WIRED granted these sources anonymity because they were not authorized to speak publicly about ongoing negotiations.

A source with knowledge of the 702 fight tells WIRED that last week House speaker Mike Johnson and House majority leader Steve Scalise met privately about drafting a new bill to reauthorize the program—an attempt to somehow merge existing bills introduced separately in December by the House Judiciary and Intelligence committees. Reformers were instantly alarmed by the history of real privacy measures being destroyed in these closed-door sessions.

A civil liberties expert tells WIRED, “This is the room where we get fucked.”

Working from offices on opposite sides of the surveillance dispute, senior aides on the Hill claim that there is 90 percent agreement between the two bipartisan camps. It is the final 10 percent—composed almost entirely of the warrant issue—on which neither is willing to budge.

Several aides attributed the drawn-out nature of the fight, at least in part, to the relative naivete of the House speaker on national security matters, saying that, with little experience in the area, Johnson had not previously had the opportunity to be captured by the intelligence community—powerful interests accused by congressional staffers of routinely deploying “fear tactics” to defend surveillance operations plagued by regular error and abuse.

Staffers claim that Johnson’s lack of experience in intelligence would have made him more reliant on House intelligence staff members, who frequently act as intermediaries between regular congressional staff and the spy agencies while inspiring awe with their access to classified information.

On Monday morning, House members were still in the dark about the specifics of Johnson and Scalise’s alleged plan for Section 702, and whether the compromise—which is expected to come later this week—would include widely supported steps to close a well-known loophole for data brokers, which allows US spy agencies to obtain information on Americans without a warrant.

Notably, Johnson had previously supported legislation that would have substantially changed the 702 program and added numerous privacy protections.

Despite the uncommon bipartisan support for reforming Section 702, sources familiar with the negotiations say pro-privacy amendments have a history of dying in backroom deals. An amendment proposed last summer to ban the US military from tracking Americans’ cell phones without a warrant was snuffed out in a closed-door session despite winning widespread support in the House. Yet another amendment—which would have done little to interfere with the federal government’s domestic surveillance work—likewise gained support in the House two years ago. But even this half-measure ultimately found itself on the chopping block after negotiations were moved into rooms open to neither the public nor the press.

The effectiveness of this latest round of pro-privacy bipartisanship came as a surprise to many in the national security establishment. Congressional sources say that a year ago, only a feeble resistance to reauthorizing the surveillance was anticipated. Even its biggest detractors acknowledge that the 702 program is likely vital to the US national defense, crucial to investigations of terrorist threats, acts of espionage, and the constant deluge of cyberattacks aimed at US companies and national infrastructure.

To the contrary, a serious challenge to continuing the program under status quo conditions did arise in the fall of 2023. Compounded by the sudden fight over the House speakership in October, the smooth reauthorization of Section 702 became a distant fantasy. Working groups established in the House to find common ground eventually disintegrated, leaving only two discernible factions in their wake—one that believes the FBI should apply for warrants before accessing US calls, texts, and emails intercepted by US spies; and another that says warrants are too much of a burden for investigators.

Since then, what’s considered a compromise is best characterized as a “rounding error.” Lawmakers opposed to warrants agreed in December that the FBI should obtain a warrant before accessing 702 data in investigations that lack a foreign component. But of the hundreds of thousands of Americans queried by the bureau each year, only a small fraction fall into this category—fewer than 1 percent, according to some civil liberties experts.

The Section 702 program was last extended in December until April, when certifications issued by the Foreign Intelligence Surveillance Court expire, ending a requirement that American companies cooperate with the intelligence community’s wiretap demands. Some experts have forecast that the intelligence community may begin to apply for new certifications as early as next month, allowing the surveillance to continue uninterrupted for an additional year, even if Congress fails to act.

It is often the last resort of congressional leaders to block privacy-enhancing bills from reaching the floor for a vote—even if the result is that a surveillance program goes suddenly unauthorized by Congress. Letting a program expire is often preferable to allowing a vote to take place if it runs the risk of enshrining unwanted restrictions in the law.

It is often the last resort of congressional leaders to block privacy-enhancing bills from reaching the floor for a vote—even if the result is that a surveillance program goes suddenly unauthorized by Congress. If a program carries the potential of becoming legislation and enshrining undesired limits, it is generally better to let it expire rather than allow a vote to occur.

Democratic leaders of the House at the time faced similar widespread resistance to maintaining the 215 monitoring program under the status quo. Instead of taking a chance on a vote that could end the programs for good, it was just let to expire. Since then, the FBI has continued availing itself of the surveillance techniques, year after year, “grandfathering” in a bevy of new cases.