A Backroom Deal Looms Over Section 702 Surveillance Fight

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Johnson, notably, previously voted in favor of legislation that would have drastically reformed the 702 program with a slew of 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’ cellphones 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 openly 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, which 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.

What’s counted toward compromise since then might best be described 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 burea...

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