In an overwhelming bipartisan vote, the U.S. Senate on Wednesday passed a sprawling $886 billion military policy bill that includes an extension of surveillance authority that the government has used — and heavily abused — to access the communications of activists, journalists, lawmakers, and others without a warrant.
The four-month extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA) was tucked into the annual National Defense Authorization Act (NDAA) as proposals to reauthorize the spying authority drew backlash from civil liberties groups and some members of Congress.
Given an opportunity to remove the extension from the NDAA on Wednesday, 65 senators — including 31 Democrats — voted to keep it in the military policy bill, which ultimately passed in an 87-13 vote.
Section 702 spying — part of a mass surveillance apparatus that lawmakers expanded dramatically in the wake of the 9/11 attacks — is supposed to be limited to non-U.S. citizens located outside the country. But U.S. citizens’ communications have frequently been hoovered up by authorities in the process of surveilling foreigners — and in circumstances completely unrelated to foreign spying efforts.
As the ACLU, Brennan Center for Justice, and other advocacy groups noted in a letter to congressional leaders last month, the FBI has used Section 702 authority to “gain warrantless access to the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress.”
“Even after the FBI’s recent changes to its internal procedures, the abuses have continued, with agents conducting warrantless searches for the communications of a U.S. senator, a state senator, and a state court judge who contacted the FBI to report civil rights violations by a local police chief,” the groups wrote. “NSA agents, for their part, have abused the authority to search for the communications of online dating prospects and potential tenants.”
The four-month extension of Section 702 that senators approved Wednesday would, in effect, likely become a 16-month extension, given that the U.S. government is expected to use the four months to secure a one-year extension from the FISA Court, as the Brennan Center’s Elizabeth Goitein explained earlier this week.
Now the proposed extension heads to the U.S. House, where the leadership of the Congressional Progressive Caucus (CPC) is formally urging its 100-plus members to vote against the NDAA. Opponents of the legislation need 146 votes to block it.
As The American Prospect’s David Dayen reported Wednesday, the CPC’s vote recommendation states that the NDAA “authorizes an unacceptably high national defense spending topline of $886.3 billion — all at a time when the Pentagon has failed an independent audit for its sixth consecutive year.”
The message adds that the NDAA also “contains a reauthorization of surveillance authorities routinely used against Americans in violation of the constitutional right to privacy.”
Rep. Pramila Jayapal (D-Wash.), chair of the CPC, signed onto a letter late last month urging congressional leaders not to include a Section 702 extension in the NDAA.
“Section 702 reauthorization should be subject to strong scrutiny and debate and cannot be included in larger, must-pass legislation,” Jayapal said in a statement. “Congress must work to stop the government from warrantlessly spying on Americans.”
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