FISA 702: Congress Poised to Extend Spy Powers Without Warrant Requirement | EFF

House Speaker Mike Johnson has confirmed plans to pursue a short-term extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA), a move that circumvents opportunities for reforms aimed at protecting the privacy rights of Americans. Johnson stated the intention is to move a “clean extension” of the surveillance program for “at least 18 months,” effectively delaying a more comprehensive reauthorization debate.

The decision comes two years after Congress passed the Reforming Intelligence and Securing America Act (RISAA), which reauthorized Section 702 with what advocates called only nominal changes. RISAA extended the program for a limited period, anticipating further negotiations on critical reforms, including a warrant requirement for queries involving U.S. Citizens. Those negotiations have not materialized.

Even House Judiciary Chair Jim Jordan, previously a vocal proponent of warrant requirements and closing loopholes in the law, has signaled support for the extension. Jordan reportedly told reporters he would vote for a clean extension, arguing that RISAA already included sufficient reforms. This stance represents a significant shift for the chairman, who has previously criticized the unchecked surveillance powers granted by Section 702.

Section 702 allows the government to collect communications of foreign targets located outside the United States, but inevitably captures data belonging to Americans who are in contact with those targets. Prior to RISAA’s passage, the program was subject to documented abuses, including improper queries targeting peaceful protesters, lawmakers, congressional staff, campaign donors, journalists and a judge investigating police misconduct. The Brennan Center for Justice has documented these prior abuses.

Critics argue that RISAA, while offering some limited changes, did not adequately address these concerns and even expanded the government’s authority to compel assistance from a wider range of companies and individuals. The Electronic Frontier Foundation has characterized the current trajectory as Congress “dropping the ball” on necessary reforms.

Several alternative bills offering more substantial reforms are currently under consideration, including the SAFE, PLEWSA, and GSRA proposals. The Center for Democracy and Technology argues that a warrant requirement for U.S. Person queries remains essential, even with the changes introduced by RISAA. While none of these bills are universally supported, they represent a significant improvement over a simple extension of the existing law.

The debate over Section 702 centers on the balance between national security and individual privacy. Proponents of the extension argue that the program is vital for gathering intelligence and preventing terrorist attacks. Opponents contend that the current framework allows for mass surveillance that violates constitutional rights and lacks sufficient oversight. The program’s origins trace back to the Bush administration, when surveillance was authorized in secret without Congressional or court oversight, a practice that continued even after the passage of the original Section 702 in 2008.

As of today, no further hearings or markups on Section 702 reauthorization have been scheduled, leaving the future of the program—and the privacy protections of Americans—uncertain.