Section 702 Surveillance Reauthorization May Be Included in ‘Must-Pass’ NDAA

Speculation is rife on Capitol Hill about a purported effort by US congressional leaders to rescue a contentious surveillance program, with sources suggesting that this plan may involve discreetly adding a last-minute provision to a crucial defense authorization bill that must be passed.

Republican and Democratic senior aides informed WIRED that news of private discussions between the party leaders began to emerge late last week, sparking concerns that House speaker Mike Johnson and Senate majority leader Chuck Schumer were trying to salvage the program, known as Section 702, without the backing of their members.

Neither Schumer nor Johnson has responded to requests for comment.

The 702 program—named after its legal basis, Section 702 of the Foreign Intelligence Surveillance Act (FISA)—permits the government to conduct surveillance on the communications of foreign individuals “reasonably believed” to be overseas, without a warrant. While intelligence analysts are not allowed to target US citizens, they can and often do obtain the communications of Americans in contact with foreign surveillance targets. Section 702 targets are not restricted to terrorists and criminals, and may include, for instance, foreign officials, diplomats, and journalists—anyone whose calls, texts, or emails are deemed to have intelligence value.

The 702 statute is due to expire at the end of the year, although surveillance under the program, acquired through the compelled cooperation of US telecoms, could technically continue until April.

By the end of the week, leading congressional figures are anticipated to unveil the final version of the National Defense Authorization Act (NDAA), a substantial bill that dictates the Pentagon’s annual funding and is one of the few bills that lawmakers cannot afford to let fail. Modifying the bill to prolong the Section 702 program would compel members to vote for or against it with limited debate and no chance to exclude any unwelcome, last-minute alterations.

Both the House and the Senate passed their own editions of the NDAA this summer, and a group of senior lawmakers had been assigned to harmonize the two bills. At present, only a handful of prominent lawmakers are privy to the contents of the final bill. The remaining conferees are expected to receive a copy of the NDAA as early as Wednesday, but may have less than a day to scrutinize what is typically over 1,000 pages of text. Party leaders will anticipate that at least half of the conference will promptly approve the bill and send it to the House and Senate for a vote.

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