Negotiations in Congress over a warrantless surveillance law are intensifying as it nears its expiration date. The debate has come during what national security officials say is a surge in threats fueled by the Israel-Hamas war.
But whether lawmakers will reach consensus and pass any bill that would renew the law, known as Section 702, before the deadline on New Year’s Eve remains far from clear. National security officials have lobbied Congress for nearly a year to reauthorize the law, and privacy advocates have urged lawmakers to include various reforms in any legislation.
Surveillance law scrambles the usual partisan lines, with national security hawks and civil liberties-minded lawmakers on both sides. Dysfunction in the Republican majority that controls the House has only complicated talks, and by week’s end, the chamber is set to be in session only 12 more days.
Here is a closer look at the state of play.
What is Section 702?
It is a surveillance law that authorizes the government to collect the communications of foreigners abroad who have been targeted for intelligence purposes — even when those targets are talking with or about Americans. The information can come from American companies like Google and AT&T and without a warrant.
Enacted in 2008, the law legalized a form of the once-secret Stellarwind program, which the Bush administration created after the Sept. 11, 2001, attacks. The government uses the law to gather information about the actions of foreign governments, including spies and hackers, networks engaged in the proliferation of weapons of mass destruction, and terrorists.
What happens if Congress does not act by Dec. 31?
The program could apparently continue until about mid-April because of an obscure provision in the law.
Specifically, Section 702 empowers a surveillance court to authorize the program and to direct companies to cooperate for 12 months at a time. If Section 702 lapses, the court could not issue a new round of such orders, but a provision says existing directives can continue until their own expiration dates.
The orders that are in effect were issued on April 11.
Would a short-term lapse in the law still cause problems?
Possibly, according to national security officials. For one, they are worried that a company might adopt a different legal interpretation and either refuse to keep cooperating or at least challenge the government in court. That could lead to gaps in collecting data or litigation headaches.
In addition, if, as a condition of reauthorization, Congress imposes new limits or rules on the program, the officials say they will need time to comply. That could include reconfiguring technical systems and making sure that everything works correctly.
Why is Section 702 contentious?
Because of its implications for the privacy rights of Americans. When a foreigner abroad who is being surveilled communicates with an American, the government collects that American’s private messages with the target, too.
Intelligence analysts and F.B.I. agents may search the raw database of Section 702 intercepts for Americans’ information. If there is a hit, then the government reads and uses those private messages of Americans that were collected without a warrant.
There are limits on when and how such queries are permitted, but F.BI. officials have repeatedly conducted searches that were later found to have lacked sufficient justification or to have been too broadly defined. Problematic queries have included searches using the identifiers of a lawmaker, Black Lives Matter protesters and Jan. 6 Capitol riot suspects.
In response, the F.B.I. has tightened its systems since 2021, such as by requiring agents searching F.B.I. databases to opt in to use of the Section 702 repository rather than including it by default and requiring them to make written records of why they think the standards are met.
What is in dispute?
At the heart of the fight is whether the government should be required to obtain a warrant or some kind of court approval before using an American’s identifier as a query term. Those pushing for reform say the existing law amounts to a “backdoor search loophole” to privacy protections under the Fourth Amendment.
“Section 702 has been routinely abused in ways that violate Americans’ fundamental civil liberties and civil rights,” a coalition of civil liberties groups said in a letter this month, adding, “In its current form, this authority is dangerous to our liberties and our democracy.”
Security officials say such a requirement would gut the program’s effectiveness, severely cutting down on the government’s ability to make use of information it has already lawfully collected.
Matthew G. Olsen, the assistant attorney general for national security, warned of the potential dangers. He said in a statement on Thursday: “In the current threat environment — following the Hamas attacks in Israel, Russia’s invasion of Ukraine, and the persistent threats we face from China and Iran — it is impossible to overstate how operationally damaging a warrant requirement for U.S. person queries would be to our efforts to protect the United States and Americans at risk overseas.”
The politics of the current reauthorization cycle are particularly fraught because of President Donald J. Trump’s hostility toward national security agencies after the investigation of Russia’s aid to his 2016 campaign. Lawmakers who have long pushed for greater civil liberties protections have been joined by some Republicans who have aligned themselves with Mr. Trump’s enmity toward the F.B.I.
Those complexities likely mean that the only way a Section 702 bill can pass is with some Democratic votes. But hard-right Republicans aligned with Mr. Trump toppled the former speaker, Representative Kevin McCarthy of California, because he used that tactic to pass short-term spending bills without deep cuts. They are now already angry at his successor, Representative Mike Johnson of Louisiana, for using the same maneuver this week.
Moreover, before becoming speaker, Mr. Johnson was one of the Republican voices skeptical of the F.B.I.’s use of Section 702.
What bills are in play?
Biden administration officials have pressed Congress to reauthorize Section 702 while legally codifying the various new limits the executive branch recently made. But they have strongly opposed any sweeping new warrant requirement.
In conversations with lawmakers, they have acknowledged that some additional overhaul proposals that stop short of a warrant would be feasible. Among such ideas are reducing the number of F.B.I. officials who can search the raw Section 702 repository.
Intelligence committee leaders in both chambers — who generally tend to be ideologically sympathetic with the attitudes of national security officials — are working on similar bills that would extend Section 702 and impose some new limits and requirements. But those proposals are said to stop short of requiring permission from a court before any query using an American’s identifier.
On Thursday, Representative Michael R. Turner, the Ohio Republican who leads the House Intelligence Committee, released a report about Section 702 that described a forthcoming bill. It will not include any general warrant requirement for queries using American identifiers, which he told reporters would be “incredibly dangerous” at a time of heightened terrorism risks.
This month, lawmakers in both chambers who are pushing for reform — including Senators Ron Wyden, Democrat of Oregon, and Mike Lee, Republican of Utah, as well as Representatives Zoe Lofgren, Democrat of California, and Andy Biggs, Republican of Arizona — introduced a bill that would impose a warrant requirement to query for Americans’ information. It also proposed many other types of limits on government surveillance powers.
Representative Jim Jordan, Republican of Ohio, who is chairman of the Judiciary Committee and a close ally of Mr. Trump, has also called for major changes to surveillance law or even letting it expire. He had negotiated with Mr. Turner for weeks, but the talks apparently failed to find consensus. Mr. Jordan may produce his own bill.
