Renewal of surveillance law clears Congress minutes after deadline

The Senate early Saturday cleared legislation to renew the National Security Agency’s warrantless spying program for two years, rejecting bipartisan amendments that would have imposed new privacy protections when it sweeps up Americans’ emails.

The 60-34 vote to reauthorize Section 702 of the Foreign Intelligence Act took place minutes after the statute was set to expire at midnight Friday. The measure now goes to President Joe Biden’s desk. The White House has said he will sign the bill.

“Allowing FISA to expire would have been dangerous,” Senate Majority Leader Chuck Schumer (D-NY) said after an eleventh-hour agreement on amendments to the legislation was reached, calling the program “an important part of our national security toolkit.”

Passage is a victory for the White House, which has campaigned for more than a year to extend the statute that national security leaders argue is vital to countering cyberattacks, espionage and terrorism.

Section 702 permits the government, without a warrant, to collect from American companies like AT&T and Google, the emails, phone calls, text messages and other electronic communications of foreigners abroad who have been targeted for intelligence surveillance — even when they communicate with Americans.

The program was recently certified until April 2025 by the secretive FISA court. However, without a federal law to compel telecommunication companies to comply in the program, the bill’s supporters feared some firms could slow their cooperation or stop working with the government altogether.

The Washington Post reported that two service providers had signaled to the administration they would opt out of the program if it lapsed. 

Any such standoff would likely end up in court, as happened in 2008, after a judge ruled that Yahoo didn’t have to adhere to the law that preceded Section 702. The matter was eventually resolved in the government’s favor, but only after several months of legal wrangling.

Adoption of any one amendment would have sent the legislation back to the House, which passed its version April 12 after members first rejected an amendment that would have required government officials to get warrants in most instances to search for Americans’ messages in the Section 702 repository.

But after nearly two days of behind-the-scenes negotiations, Schumer and the bill’s critics were able to make a deal on amendments, some of which were opposed by the White House because they had chances of being adopted.

Senate Judiciary Chairman Dick Durbin (D-IL) and Sen. Kevin Cramer (R-ND), proposed an amendment similar to the one from the House that would require the government to obtain court approval before it could access the content of Americans’ private communications swept up in the program. It was not adopted, 42-50.

A bipartisan amendment introduced by Sen. Ron Wyden (D-OR) that would have stripped a provision tacked on to the House-passed bill that changed the definition of “electronic communications service providers,” or ECSPs, was also defeated, 34-58.

Privacy advocates argued the new definition of ECSPs, even with some exceptions built in, would lead to a historic expansion of surveillance — despite assurances from the Justice Department that the provision would be narrowly applied.

Senate Intelligence Chairman Mark Warner (D-VA), who led floor opposition to the amendment, offered to take the issue up again when the committee crafts its annual intelligence authorization bill.

Senators also easily defeated an amendment from Sen. Rand Paul (R-KY) that would have hitched the Fourth Amendment is Not For Sale Act to the bill — days after it passed the House. Instead, it went down, 31-61.

Warner pledged  to keep making refinements to Section 702 as necessary.

“Where there are areas that still need improvement, we commit to work with you to make this incredibly important tool more efficiently and effectively overseen,” he said prior to final passage.