The Trump Loyalists voted against the US wiretap program

WIRED: Special Report on the House Intelligence Committee’s Discussion on Section 702 and Implications for the U.S. Information Security

The United States government has poured hundreds of millions of dollars into quietly turning the phones and internet browsers of its own citizens into powerful intelligence-gathering tools. The US intelligence system has amassed a large amount of information on Americans due to shady deals between federal agencies and commercial data brokers.

As the third time since December, Speaker Mike Johnson has not been able to get a reauthorizing the critical US surveillance program, raising questions about the future of a statute that requires certain businesses to wiretap foreigners.

Proposed changes to Section 702 program championed by members of the House Intelligence Committee and Johnson who previously voted in favor of warrant requirement despite now opposing it have been criticized by privacy experts.

The program could be salvaged by a vote as early as Thursday after a number of smaller votes and briefings between lawmakers and intelligence officials, according to congressional sources.

The focus of privacy advocates has turned almost entirely to an amendment that aims to force the FBI and other agencies to apply for a warrant before accessing the communications of Americans incidentally captured by the US under the 702 program.

WIRED will update this article with the latest details as they become available to keep pace with a situation that is sure to change rapidly. For the most recent developments, see below.

The outcome of today was not preventable and it requires the Intelligence Community to acknowledge that their days of unaccountable and unwarranted espionage on Americans are over.

Inconsistencies in the FAISA Section 702 Program: Implications for the Public Good, Civil Liberties, and the First Congressional Appropriations

James Czerniawaski, a senior policy analyst at Americans for Prosperity, a Washington, DC, think tank pushing for changes to Section 702, says that despite recognizing its value, it remained a “troubled program” in need of “significant and meaningful reforms.”

Declassified filings released by the FISA court last year revealed that the FBI had misused the 702 program more than 278,000 times, including, as reported by The Washington Post, against “crime victims, Jan. 6 riot suspects, people arrested at protests after the policing killing of George Floyd in 2020 and—in one case—19,000 donors to a congressional candidate.”

An amendment offered by the Intel committee risked increasing the number of US businesses that are forced to help with the program, attorneys said in a statement on Tuesday.

Sean Vitka, policy director of Demand Progress, a civil liberties-focused nonprofit, believes Congressional leadership needs to be reminded that privacy protections are popular. Civil liberty reformers are willing and able to do that.

The government admits that it collected a lot of US communications, despite its insistence that it only targets foreigners. It says it is impossible to calculate the actual amount. It states that it is Constitutional for agents to review wiretaps without a warrant if those communications are in the government’s possession.

The program remains controversial due to a list of abuses committed by the federal Bureau of Investigation which holds part of the raw data collected under 702.

The certifications, which are only required due to the “incidental” collection of US calls, generally permit the program’s use in cases involving terrorism, cybercrime, and weapons proliferation. US intelligence officials have also touted the program as crucial in combating the flood of fentanyl-related substances entering the US from overseas.

In February the DOJ applied for new certifications. It said last week that the court had approved them. The government’s power to issue new directives under the program without Congress’s approval, however, remains in question.

Johnson lost 19 Republicans on Tuesday in a procedural vote that traditionally falls along party lines. The Republicans control the House with a razor-thin margin. The failed vote comes just hours after former US president Donald Trump ordered Republicans to “Kill FISA” in a 2 am post on Truth Social, referring to the Foreign Intelligence Surveillance Act, under which the program is authorized.