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The intelligence community won an expansion of snooping powers from Congress, but opponents cut the authority to two years, meaning Capitol Hill will revisit the fight much sooner than anticipated.
President Biden signed the expansion into law Saturday, capping an intense six-month fight over Section 702 of the Foreign Intelligence Surveillance Act, which allows the government to scoop up and search through communications of foreign targets — including communications with Americans and others inside the U.S. — without a warrant.
The bill cleared the Senate on a bipartisan 60-34 vote late Friday, just hours before the former authority expired and after the spying tool’s supporters shot down attempts to add a warrant requirement and roll back the bill’s new reach, which could compel data centers to cooperate in turning over information that crosses their servers.
Dubbed by critics as the “everyone is a spy” provision, the data center provision was tucked into the bill late in the process and turned into a major sticking point in the Senate.
“There would be practically no limits to who can be forced into spying for the government,” said Sen. Ron Wyden, Oregon Democrat and one of FISA’s chief critics. “Any company that installs, maintains or repairs Wi-Fi or other communications systems in any American business, home or church can be dragged into this.”
Sen. Mark R. Warner, Virginia Democrat and chairman of the Senate Select Committee on Intelligence, said cloud computing and data centers didn’t exist when FISA was crafted. He said the law must be redrawn to allow the government to collect the kinds of data it needs.
Sen. Marco Rubio, Florida Republican and the panel’s vice chairman, said the issue is sensitive and difficult to discuss publicly, but he assured senators the fix was needed to close “an unintended gap in coverage.”
Mr. Warner acknowledged that the provision was inartfully written and assured colleagues he would revisit the matter in the annual intelligence policy bill later this year.
That was one of the few concessions civil rights advocates won in the FISA fight. Another was the move to cut reauthorization of the law from five years to two.
FISA opponents went into the battle hoping to force a warrant requirement when the government wants to snoop through Americans’ data. They pointed to a history of FBI abuses, including querying the Section 702 data to investigate racial justice protesters, political campaign donors and those involved in storming the Capitol on Jan. 6, 2021.
FISA backers said those abuses have been cleaned up. They pointed to FBI moves now codified in law to rein in the universe of people who can query the data and to impose criminal penalties on intentional misuse.
The legislation expands transparency by requiring more frequent reporting to Congress on the law’s operations and allowing congressional observers access to the secret court proceedings.
Supporters of the bill said a warrant requirement to look at Americans’ data would ruin the tool.
“Many times, you start the investigation and you don’t know if the individual is an American or a foreigner,” Mr. Warner said.
Supporting the bill were 30 Republicans and 30 members of the Democratic Caucus. Opposing it were 16 Republicans and 18 members of the Democratic Caucus.
The measure cleared the House last week in a 273-147 vote after drama on an amendment to add the warrant requirement. That failed on a 212-212 tie vote.
The White House said the law preserves a critical national security tool while adding “the most robust set of reforms ever included in legislation to reauthorize Section 702.”
Intelligence officials say 702 is the backbone of U.S. snooping, and nearly 60% of the items in the president’s daily security brief contain information derived from the data collection.
In addition to terrorist threats, that includes information about cyberattacks, weapons proliferation, Russian aggression in Ukraine and fentanyl trafficking.
The new law contains an expansion of the definition of foreign intelligence information that would allow the government to target communications of drug smuggling cartel associates.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Kerry Picket can be reached at kpicket@washingtontimes.com.
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