The Latest Push to Extend Key US Spy Powers Is Still a Mess

Leaders in the United States House of Representatives on Thursday released the text of a negotiated bill to reauthorize a US surveillance program that enables federal agents to read the communications of Americans without a warrant. The agreement—while appearing to contain a slew of new oversight provisions—leaves untouched the kind of warrantless search of Americans' communications that a federal court ruled unconstitutional last year.

The bill aims to extend the embattled program—Section 702 of the Foreign Intelligence Surveillance Act (FISA)—for an additional three years and is the product of a deal cut with House Republican leadership after House speaker Mike Johnson failed to secure a clean 18-month extension last week.

The 702 program has become increasingly controversial due to revelations that federal agents have used it to spy on racial justice protesters, political donors, journalists, and sitting members of Congress. Oversight mechanisms credited with curbing the FBI's prior abuses have also been dismantled under the current administration, even as the bureau has raided the homes of journalists and the FBI director has publicly threatened to investigate the president's perceived enemies.

On Wednesday, The New York Times reported that FBI agents had, in March, combed federal databases for material on Times reporter Elizabeth Williamson after her February article on the FBI director’s girlfriend. The agents recommended opening a preliminary investigation of Williamson on a stalking theory. The bureau has not said which databases were searched or whether any Section 702 material was among them.

Following a Republican mutiny that sank the White House's push for a clean reauthorization last Friday, House leaders returned this week with a new bill that contains several provisions that, at first blush, appear to constrain the FBI’s ability to access the 702 database. However, the reforms are largely cosmetic, re-creating oversight functions that the administration has already dismantled elsewhere and leaving the FBI's core authority to search Americans’ communications without a warrant untouched.

Section 2 of the bill, for instance, would require the FBI, each month, to send lawyers at the Office of the Director of National Intelligence a written justification for every query it ran against 702 data using an American's identifier. The function is close to one the FBI performed on itself until last May, when director Kash Patel shuttered the bureau's Office of Internal Auditing (OIA). Crucially, the ODNI office picking up the work has a fraction of OIA's staff, no subpoena power, and no authority to suppress a query or any data it returned.

The lawyers doing the reviewing are also among the career federal employees the White House reclassified as “at-will” in March, stripping their civil service protections—meaning an attorney who flags an improper query can now be summarily fired for doing so.

Section 3 of the bill threatens FBI employees with up to five years in prison for “knowingly and willfully” violating the bureau's querying rules or falsifying compliance. That standard—one of the toughest intent requirements in criminal law—is historically a graveyard for prosecutions and relies on the Justice Department’s appetite for prosecuting its own. Notably, none of the FBI's documented past abuses would appear to meet that standard. The bureau's explanations for querying the communications of activists and members of Congress have consistently relied on claims of inadequate training or unintentional error.

Section 4—titled “Fourth Amendment Requirement for Targeting United States Persons”—bars conduct that is already illegal. The provision is a fig leaf. It lets lawmakers on the fence appear to vote for a constitutional safeguard, or, for those who read no further than the heading, believe that they have.

A senior Democratic aide familiar with the negotiations referred to the section as a “legislative scam,” telling WIRED: “There are many members who don't quite understand the ins and outs of this law. Tossing the phrase ‘Fourth Amendment requirement’ into the bill is the speaker and the intelligence community working to dupe them into supporting a bill that has no meaningful constitutional safeguards.”

Section 5 directs the US attorney general to revoke existing rules on congressional access to the secret court that oversees the 702 program and issue new ones within 60 days. The provision is not self-executing: The access it promises is only as broad as the attorney general chooses to make it.

Section 6 is the only provision in the bill with any prospective bite. It strikes language in current law that lets an FBI supervisor, or any employee of equivalent rank, approve a query of the 702 database using an American's identifier, leaving the decision to an attorney. The same attorneys, however, sit within the class of career employees the administration reclassified as at-will last month.

Finally, Section 7 orders the Government Accountability Office to audit the program's targeting procedures within a year and report to the House and Senate intelligence and judiciary committees. The audit is nonbinding. Whether it produces anything of value depends on whether the intelligence community gives GAO real access to the technical mechanisms it is meant to examine.

The bill's Democratic support is being whipped by Representative Jim Himes, the Connecticut Democrat who serves as ranking member of the House Intelligence Committee. Himes, a member of the Gang of Eight briefed on the bureau's most sensitive operations, has justified his position largely by saying he is personally unaware of any abuse of the program under the current administration—an appeal to ignorance that sits uneasily alongside his simultaneous reliance on compliance numbers produced by an FBI oversight office that Patel closed 11 months ago.

Pressure on Himes from within his district is building. On Thursday, a coalition of Connecticut organizations called on him to step down as ranking member, accusing him of “helping Donald Trump preserve warrantless surveillance” and “falsely and repeatedly claiming intelligence agencies do not purchase data broker information on people in the United States.”

Himes did not immediately respond to a request for comment. In a previous statement, he told WIRED that he had seen “zero evidence of abuse” of the 702 program under the Trump administration, called Section 702 the country’s “most important and most rigorously overseen foreign intelligence collection tool,” and said he would only urge members to reauthorize the program if he’d seen no suggestion that the administration was using Section 702 for “illegal or improper purposes.”

“The latest House FISA bill is a rubber stamp for Trump and Kash Patel to spy on Americans without a warrant,” Senator Ron Wyden, who sits on the Senate intelligence committee, said in a statement. “Don’t fall for fake reforms. Tell anyone who will listen, Americans need to stop warrantless surveillance. Instead of ending warrantless surveillance or creating more transparency about government spying, this bill only requires a few more Trump administration officials to check a box. That always leads to more abuses, not less.”

Former Republican House Judiciary chair Bob Goodlatte, now with the nonpartisan Project for Privacy and Surveillance Accountability, tells WIRED that the bill's marquee provision aimed at swaying members on the fence merely restates conduct “already forbidden by law” and creates no real impediment for FBI agents determined to search Americans’ private communications.

“This is a disappointment,” Goodlatte says. “But I take heart from the fact that 228 House Members voted last week to oppose a clean reauthorization of a similar proposal. Sixty percent of Republicans voted two years ago for a warrant requirement. This is far from over.”