FISA Surveillance Gets the Cold Shoulder in Congress

For the first time since it was added to FISA in 2008, the legislative authorization of warrantless spying granted by Section 702 will lapse. Congress came close to fully reauthorizing it weeks ago, but President Donald Trump made two announcements that sparked enough inter- and intra-party conflict that negotiations fell apart. Now, just one day before it’s set to expire, both chambers shifted gears and voted on temporary extensions. All four attempts failed.

FISA Falls Flat in Congress

GOP leaders in the House quickly called a vote to suspend the rules and pass a stopgap version on Thursday, June 11, using a procedure requiring a 2/3 vote to pass. It didn’t come close – in fact, it didn’t even reach a simple majority. The final count was 198-218, with 15 not voting. Rather, it’s worth noting the representatives voting against the measure did reach an actual majority! Just seven Democrats and one independent joined 190 Republicans in supporting the bill, while six didn’t vote at all. Nine Republicans didn’t vote, while 19 more sided with the majority of Democrats (199) to oppose.

The Senate made three attempts of its own, each ending in failure. This was just a week after more than a half-dozen Senate Republicans joined all Democrats to oppose taking up the full version of the reauthorization bill passed by the House about a month earlier.

The primary, headline-grabbing reasons cited by lawmakers on both sides of the aisle were President Trump’s announcement of the $1.776 billion anti-weaponization fund from his settlement with the IRS and the nomination of Bill Pulte to serve as acting director of national intelligence. Trump has since walked back both apparently scandalous positions, but not soon enough to stop the conflict, and not to the satisfaction of the outraged legislators.

But current concerns of political leverage aside, the warrantless spying – especially on US citizens – of FISA Section 702 has been controversial from day one.

When Liberty and Security Collide

Both Republican and Democrat majorities in both chambers of Congress have traditionally reauthorized even the most controversial aspect of FISA, the warrantless mass surveillance allowed by Section 702. And indeed, it has fit into the presidential agendas of every executive since its debut in 2008. President George W. Bush signed the amendment to add it to the Foreign Intelligence Surveillance Act (originally passed in 1978 under Jimmy Carter). And at every deadline since, each Congress and president – regardless of political party – signed off on it. That list includes every president to serve since Bush: Barack Obama in 2012, Donald Trump in 2018, and Joe Biden in 2024.

But there are privacy and liberty concerns that stretch across the aisle, as well. From the ACLU and the Brennan Center for Justice on the left to conservative and libertarian groups like the Cato Institute, Demand Progress, Americans for Prosperity, and FreedomWorks – and from Democrat civil rights activists in Congress to Freedom Caucus House Republicans and the more libertarian leaning GOP senators – concern that the government is rampantly violating the rights of everyday Americans is equally bipartisan.

Section 702 targets foreign intelligence gathering. But in collecting massive troves of international communications data, the program inevitably – and, it may seem to many, happily – swallows up countless emails, phone calls, and text messages of US citizens. And it does all this without any need for a warrant. It’s hard to imagine a more blatant and widespread violation of the Fourth Amendment protection against unreasonable search and seizure.

As well, there’s a First Amendment concern. The general knowledge that “Big Brother” is always watching and listening creates a chilling effect on freedom of speech – especially after the Foreign Intelligence Surveillance Court (FISC) found what it admitted were “widespread violations” of querying rules, noting that the FBI had frequently improperly searched Section 702 databases during domestic investigations against American targets. But never fear: The FBI happily reported (on itself) in 2023 and 2024 that FISC is now of the opinion that they aren’t abusing the rules nearly as much as they used to. How comforting.

But two truths can exist at the same time, even if they may at first seem contradictory. While only a handful of operations relying on Section 702 warrantless surveillance have ever been declassified – and make of that fact what you will – those that have been show that it has in fact saved American lives. A Section 702 interception of an email from a terrorist in Pakistan led to the discovery and thwarting of Najibullah Zazi’s al-Qaeda plot to bomb New York City’s subway system in 2009. Data collected in similar sweeps has prevented public terror attacks, kidnappings, and assassinations across the globe and led to the “removal” of various terrorists since.

The question, of course, is whether or not these lives could have been saved had warrants been required to bring the program into total Fourth Amendment compliance. Some say yes – others say no, that it would add too much time and extra paperwork and would effectively neuter lifesaving operations.

Whatever the answer – and whether any individual lawmaker’s resistance is due to true belief or political leverage – more questions remain. What exactly are we giving up for this added safety – whether real or illusory, permanent or fleeting – and is it worth it? The FISA Section 702 legislative battle over absolute government power brings to mind a much older one. In 1775, when the British Crown refused to stop quartering soldiers in the colonies or to revoke Parliament’s authority to regulate them, many here in America urged their leaders to give in. Benjamin Franklin admonished them: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

One wonders what the good doctor and his fellow Founding Fathers would say today.