A Controversial US Surveillance Program May Get Slipped Into a ‘Must-Pass’ Defense Bill

Rumors are rampant on Capitol Hill about an effort said to be underway by congressional leaders to salvage a controversial surveillance program—a plan that sources say may include slipping a last-minute provision into a “must pass” defense authorization bill.

Republican and Democratic senior aides tell WIRED that word of private talks between the party leaders began to leak late last week, sparking concerns that House speaker Mike Johnson and Senate majority leader Chuck Schumer were mounting a last-ditch effort to rescue the program, known as Section 702, without the support of their rank-and-file members.

Neither Schumer nor Johnson have responded to requests for comment.

The 702 program—so named for its statutory source, Section 702 of the Foreign Intelligence Surveillance Act (FISA)—allows the government to warrantlessly surveil the communications of foreign citizens “reasonably believed” to be overseas. While intelligence analysts cannot target legal US residents, they can and often do acquire the communications of Americans in contact with foreign surveillance targets. Section 702 targets are not limited to terrorists and criminals and may include, for example, foreign officials, diplomats, and journalists—anyone whose calls, texts, or emails are believed to have intelligence value.

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

By week’s end, top congressional leaders are expected to present the final text of the National Defense Authorization Act (NDAA), a massive bill directing the Pentagon’s annual funding, and one of only a few bills lawmakers cannot afford to let die. Amending the bill to extend the Section 702 program would force members into an up-or-down vote with limited debate and no opportunity to omit any unwanted, last-minute changes.

The House and Senate passed their own versions of the NDAA this summer, and a conference of top lawmakers was tasked with consolidating the two bills. Currently, however, only a few top lawmakers know what the bill’s final text will say. The remaining conferees expect to receive a copy of the NDAA as early as Wednesday but may have less than a day to parse what is typically over a thousand pages of text. Party leaders will expect at least half of the conference to sign off on the bill quickly and send it to the House and Senate floor for a vote.