New plan would give Congress another 18 months to revisit Section 702 surveillance powers

Sen. Tom Cotton is shopping around a plan that would push next year’s debate on the renewal of a controversial spy program deep into 2027, putting off what is expected to be a grueling process until well past the midterm elections.

The Arkansas Republican, who chairs the Senate Intelligence Committee, has been having conversations with colleagues and the White House about an idea that would see an 18-month “clean” reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, according to congressional sources familiar with the talks. The program will expire next April without congressional action. 

At the same time, congressional leaders would back a top-level panel meant to scrutinize the entire  FISA statute. Congress authorized the panel in 2024, but it never began its work.

The hope is a two-pronged strategy would attract support from national security hawks who don’t want to see the Section 702 authority go dark, while allaying the concerns of privacy-minded policymakers who oppose government surveillance efforts, these people said.

A spokesperson for Cotton declined to comment.

The idea likely will be one of several that Cotton and other policymakers suggest as the April deadline draws closer. It’s notable because it is the first potential Section 702 renewal plan in circulation this year and one that could succeed, given Cotton’s longstanding support of President Donald Trump.

Rick Crawford (R-AR), Cotton’s counterpart in the House, said the two have discussed various ways on how best to expand the two-year window that was inserted into the Section 702 reauthorization bill in 2024 specifically to appease Trump’s congressional followers.

“It’s really not that controversial,” Crawford told Recorded Future News, calling the last renewal a “short-term” one and noting an 18-month extension would make it almost five years between reauthorization fights.

“It’s a fairly sound plan that gives us a little more time to evaluate those reforms that were implemented,” according to Crawford. “So when we go back to it, if we do a longer term, we’ll have had a really good look at what worked, what didn’t, what we need to do differently.”

The Section 702 debate traces back to 2008, when Congress legalized a version of a surveillance program secretly created by the National Security Agency after the Sept. 11 attacks. Section 702 allows the U.S. government, without obtaining warrants, to track the electronic communications of foreign terrorists, spies and hackers — but it also gathers communications data from an unknown number of Americans. 

Analysts at several federal agencies can search the 702 repository by using Americans’ identifiers as query terms, such as their names, phone number and email addresses. Critics have long argued those searches are a “backdoor” to the Fourth Amendment’s requirement that the government obtain warrants to intrude on Americans’ private communications.

The program’s renewal process has traditionally been turbulent, and the last refresh was no exception. 

An amendment that would have required federal agencies to obtain a court warrant before they could search the massive 702 database for information about Americans was defeated in a 212-212 tie vote in the House. 

A redefinition of the kind telecommunications providers who must comply with the statute nearly tanked its chances at the eleventh hour. 

And while the Senate ultimately approved a renewal that President Joe Biden signed into law, it did so with the bare minimum number of votes required for passage.

Given that history, Cotton and leadership are anxious to avoid a stand-alone vote on any 702 extension and are looking to attach it to must-pass legislation, such as a government funding measure or the annual defense policy bill, sources said.

Details about Cotton’s plan or how it might ultimately come up for consideration are so closely held that not even the Senate Intelligence panel’s top Democrat was aware of them.

“If that is a plan, it’s so secret that I’ve not heard anything about it,” said Mark Warner of Virginia, who refrained from weighing in on the scheme.

“I’ll wait for the chairman to talk to me.”

Signs of life for ‘Reform Commission’

Cotton’s brainchild has received a boost as steps have been taken to constitute the “FISA Reform Commission” that was established by the last reauthorization. FISA itself dates to the Watergate era and has been modified several times since.

A stopgap government funding bill approved in March set aside money for the panel.

Senate Minority Leader Chuck Schumer (D-NY) in April appointed his three picks to the panel. They included Sen. Jon Ossoff, a member of the Intelligence Committee; Alex Joel, a former civil liberties protection officer for the Office of the Director of National Intelligence; and David Kris, a former assistant attorney general for the Justice Department’s national security division.

House Minority Leader Hakeem Jeffries (D-NY) followed suit a month later when he named Rep. Jim Himes (CT), the top Democrat on the House Intelligence Committee; Glenn Gerstell, a former NSA general counsel; and Sharon Bradford Franklin, who recently chaired the Privacy and Civil Liberties Oversight Board.

The hangup is the GOP. 

House Speaker Mike Johnson (LA) and Senate Majority Leader John Thune (SD) want to sync their selection announcements, sources said, in order to provide each other with political cover because their fellow Republicans are often divided on issues relating to surveillance and privacy, particularly Section 702. 

For instance, some lawmakers in both chambers are hoping Trump will make a declarative statement on his social media in support of the authority or an extension plan and save them all a potential headache.

Crawford said he hadn’t heard anything about Johnson and Thune wanting to present a united front.

“I’m sure they’ll get it worked out.“

A spokesperson for Johnson declined to comment on any forthcoming selections for the commission. A Thune spokesperson did not respond to a request for comment.

While no reauthorization strategy has been cemented, it’s already clear that privacy and civil liberties groups will draw a line at a straight renewal.

“A clean refresh of FISA Section 702 would show utter disrespect for the American people,” according to Jeramie D. Scott, senior counsel and director of the Project on Surveillance Oversight at the Electronic Privacy Information Center.

“We don’t need a reform commission to tell us that Section 702 authority, a foreign intelligence authority, has been abused to access Americans’ communications,” he said in a statement. “It’s well documented and so is one of the most straightforward solutions—a warrant requirement to search Americans’ communications incidentally collected through Section 702 surveillance.”

A commission “could be helpful in further analyzing what additional reforms are needed or assessing the effectiveness of new reforms, but let’s not act like we don’t know what some of the main problems are and the potential solutions. Congress needs to do its job,” Scott said.