The House of Representatives has failed to renew the U.S. government's warrantless surveillance law, which is set to expire on Friday, almost certain to expire for the first time as lawmakers protest the controversial appointment of a Trump ally to oversee U.S. intelligence agencies.
The House passed the bill 218-198, but a two-thirds majority was needed for passage. Nineteen Republicans voted against it. The next vote is scheduled for June 23, according to Politico.
The Espionage Act, officially known as the Foreign Intelligence Surveillance Act (FISA), broadly authorizes U.S. intelligence agencies to collect vast amounts of information, including on Americans, to identify foreign hackers, spies, and potential terrorists. The regulation, also known as Section 702 because of its appearance on the law books, has long been considered important to national security by both Democrats and Republicans.
Bipartisan efforts to reform the decades-old Espionage Act have stalled in recent weeks, with lawmakers only able to pass a short extension to continue negotiations.
Critics have called for sweeping reforms to FISA, citing abuses of the law by past U.S. administrations. The Trump administration had called for a complete reauthorization of the law, but lawmakers from both parties wanted a provision that would require spy agencies to first obtain a court-approved warrant before giving access to Americans' private communications.
But a new hurdle posed for the Trump administration last week when the president named one of his allies, Bill Pruitt, as acting director of national intelligence. This Cabinet-level position oversees more than a dozen government spy agencies, including the Central Intelligence Agency and the National Security Agency.
The appointment raised concerns that Mr. Prut would use his position to attack Mr. Trump's political opponents and eviscerate the top intelligence agency he oversees. Politico reported that Pruitt's appointment was a “clear sign of the recent mood” within the White House, saying Trump has become increasingly isolated and frustrated.
Democrats had warned that appointing Mr. Pulte would be a greater risk to U.S. national security than allowing the law to expire, according to the Washington Post.
Pruitt, who has no intelligence or national security experience, was scheduled to start on June 19, alongside his current role leading the Federal Housing Administration. But on Thursday, the administration withdrew Mr. Pulte's nomination and replaced him with Jay Clayton, who is currently the U.S. attorney for the Southern District of New York and previously served as chairman of the Securities and Exchange Commission.
But by the time news of Creighton's appointment broke, many lawmakers had already left the capital for a week's vacation, making a last-minute deal on the FISA relief unlikely.
Utilization of fiber cables and tech giants
Section 702 of FISA came to mainstream attention during the 2013 surveillance scandal involving the National Security Agency and several close U.S. allies. Former NSA contractor turned whistleblower Edward Snowden leaked thousands of documents to journalists, revealing the scope of America's global surveillance operations. That included Americans who are constitutionally exempt from U.S. surveillance.
Using programs authorized under Section 702, the NSA leveraged these legal authorities to collect vast amounts of communications around the world flowing through the undersea fiber-optic cables that make up the backbone of the Internet. The NSA also accessed extensive user data from tech giants such as Apple, Facebook, Google, and Microsoft under a program called PRISM.
The law itself expires on Friday, but the U.S. government's spying powers and programs are unlikely to end anytime soon.
The spy program authorized under FISA had already been approved in March as part of the annual certification process by the Washington, D.C.-based Foreign Intelligence Surveillance Court (FISC), which oversees government surveillance programs and secretly hears surveillance applications. U.S. authorities can continue to use surveillance tools under FISA until March 2027, allowing many of the government's mass surveillance programs to continue operating.
But phone companies that provide governments with rolling logs of calls made by their customers may be reluctant to share this information unless there is a clear law allowing them to do so, according to Reuters.
Still, the U.S. government has other surveillance tools it can rely on, such as Executive Order 12333, which allows the government to conduct surveillance around the world with near-unfettered authority.
Bipartisan lawmakers continue to warn about FISA abuses regardless. Earlier this year, Sen. Ron Wyden, a ranking Democrat and longtime member of the Senate Intelligence Committee, warned that FISA is still being actively used to covertly violate Americans' constitutional rights.
Wyden said he has information on classified matters but cannot discuss them publicly, and said lawmakers likely do not know that multiple U.S. governments rely on secret interpretations of Section 702 that “directly impact the privacy rights of Americans.”
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