Get FISA Right

“The battle over FISA 702 reauthorization continues. A bipartisan coalition of reformers continue to press to introduce a warrant requirement and close the data broker loophole. Surveillance hawks continue to press for reauthorization without any meaningful reforms. In April, 42 Democrats joined the majority of House Republicans in passed a three-year authorization without meaningful reforms — boooooo!!!!! Fortunately the Senate said no, and so at the last moment they passed a 45-day extension. With only ten days left, time’s running out to come to agreement — or let the statute lapse. “

— FISA Reauth down to the short strokes, June 1

“Senate Republicans early Friday could not muster enough votes to move forward on a long-term reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, leaving the key surveillance power, which expires next week, in limbo as both chambers leave the Capitol for the weekend.”

— FISA reauthorization stalls in early-morning Senate vote, Savannah Behrmann in Roll Call, June 5

“Next week it gets real.”

–Sen. Majority Leader Thune, quoted in GOP leadership’s FISA jam on Punchbowl News, June 5

“I’ll be fighting like hell between now and June 12 to ensure Congress doesn’t cave and renew Section 702 of FISA without real reforms. Security and liberty aren’t mutually exclusive, and it seems like Congress is finally starting to understand that.”

— Sen. Ron Wyden, on Bluesky

Once again FISA reauthorization is going down to the wire. Early last week there were reports that Sen. John Warner had convinced enough Senate Democrats to support a “compromise” (ha-ha) three-year extension without any real reforms, hoping that enough Democrats would also cross over in the House to pass it. But once Bill Pulte — with no intelligence experience and a track record of abusing data to target the President’s opponents — was installed as Acting Director of National Intelligence and nominated for the permanent role — Democrats in both chambers drew the line. And time is running out to get agreement by the June 12 “deadline”. What a mess.

It’s worth highlighting that the “deadline” isn’t real. Even if Section 702 doesn’t get reauthorized by June 12, the surveillance continues for another nine months: the FISA Court has already approved the certifications through March 2027. So Congress could re-authorize it during the lame duck session in December, or early next year. Still, surveillance hawks are still trying to use the fake “deadline” to create a sense of urgency.

In Punchbowl News, Jake Sherman et al suggest that “short of removing Pulte from the job, the only other way to assuage Democrats would be for Trump to name a permanent nominee who meets the qualifications outlined in the statute that created ODNI.” Very honestly, if it were any other adminstration I’d be assuming that was the game plan, and the cynic in me would be wondering whether the whole Pulte subplot was a ploy to let Democrats claim to win something and then get behind the previous “compromise” (ha-ha) deal. With this administration … who knows. But, it’s still a possibility to be nervous about.

Still, even if the Pulte mess somehow gets cleared up, there’s no guarantee that anything without significant reforms will be able to pass the House. Politico reports that House Freedom Caucus Republicans are restarting their social media campaign to demand a warrant requirement, so it might be challenging to get something through Rules. If that doesn’t happen, Speaker Johnson’s only option is a floor vote without a rule which would require a 2/3 majority — and with a majority of House Democrats also supporting reforms, it’s not clear how likely that is. Over the weekend Senators Tom Cotton and Chuck Grassley sent to Secretary of State Marco Rubio warning that Section 702 authorities might lapse, and urging the administration to “explore alternative legal authorities to continue collecting intelligence and, if necessary, to draft an executive order to address the gap left by the expiration of the law.” Rubio wrote back saying how bad that would be. It’s shameless posturing — the “deadline” isn’t real — but it’s worked in the past.

Of course they could pass something with real reforms. Proposed reform legislation including the GSRA, SAFE Act and Protect Liberty Act has bipartisan support, and the votes are probably there in both chambers. But I’m not holding my breath. Maybe they can find the votes for another short-term extension, but then again everybody in both parties is pretty sick of this nonsense so maybe not. The closer we get to midterm elections, the less time and energy Congress wants to spend on a polarizing issue like FISA. So we shall see.

In any case, it’s once again a great time to contact your legislators! This is a situation where calls are likely to have a lot more impact than emails; you can use the US Capitol switchboard at 202-224-312, call your legislators office directly. or use calling tools from Indivisible and QuitGPT if you prefer. Both the House and Senate will be voting, so if you have time please call your Senators as well as your Representative!

Here’s a simple script.

Hi, my name is [Your Name], and I’m a constituent from [Your City, State]. I am calling today to ask that reject any extension to FISA Section 702 unless it includes key bipartisan reforms: closing requiring a warrant and closing the data broker loophole. Please do not be fooled by fake reforms that simply restate existing law, and please stop passing short-term extensions that just kick the ball down the road. Instead, support real reform like the GSRA — which has bipartisan support in both chambers.