Partisan Bullshit Tanks House Section 702 Reform Efforts

It took the FBI carelessly, stupidly, and unlawfully targeting members of Trump’s inner circle to make Section 702 program reform a thing that might actually happen.

It’s kind of astounding, considering the Snowden leaks provided a much better argument for reform, as well as the FBI’s long-documented history of abusing its access to Section 702 collections to engage in warrantless surveillance of American citizens.

But it wasn’t until a former Trump advisor and Trump acolyte in the House got caught up in the FBI’s dragnet that things started to look a little grim for supporters of clean reauthorization. Years of abuse was considered fine right up until it affected people who mattered… at least to themselves and the former president they idolize.

There’s been plenty of opposition to unchecked surveillance over the years, but it has almost always been led by Senator Ron Wyden. Wyden’s efforts have been shot down by his own colleagues, who have been unwilling to challenge the Intelligence Community’s claims nothing about any surveillance authority should ever be changed because terrorism.

More than two decades after the 9/11 attacks, this attitude remains in full force. But it has been made worse by hyper-partisanship — something actively encouraged by Donald Trump during his term in office and made worse by Republicans who both want to ingratiate themselves with a former president as well as show their voting base they’re doing something to address Deep State conspiracies they’ve been stoking since Trump first took office.

The thing is this could have led to meaningful reforms, even if the motivations were highly suspect. As for the FBI, it offered only two arguments in defense of its warrantless access to US persons’ communications: (1) TERRORISM!, and (2) [hilariously] pretty much all of our searches of Section 702 collections are unlawful if you bring the Fourth Amendment into it.

The vote on extending Section 702 has been pushed back several times. Reform efforts (again led by Wyden) have been mounted. The rep heading the House Intelligence Community also pushed his own set of “reforms,” but they did nothing more than provide protections to congressional members who might find themselves subjected to the FBI’s continuous surveillance abuses.

The vote in House on proposed reforms and Section 702 reauthorization has given the FBI a free pass until the next renewal. As Elizabeth Nolan Brown notes for Reason, Democrats unwilling to give Republicans what they wanted (even if it meant better protections for their constituents) overwhelmingly voted in favor of an unaltered continuation of everything that’s been abused for years.

A measure requiring federal agents to get a warrant before searching American communications collected as part of foreign intelligence failed to pass the House of Representatives today. The measure received 212 votes for and 212 votes against.

“This is a sad day for America,” said Rep. Thomas Massie (R–Ky.). “The Speaker doesn’t always vote in the House, but he was the tie breaker today. He voted against warrants.”

But it was largely Democrats who sank the warrant requirement. House Democrats voted against the measure 84–126, while Republicans voted for the measure 128–86.

There’s the partisan split. That’s how you end up with a tie, which means the unaltered Section 702 moves on to the Senate for a vote. Had just a few Democrats been willing to place the concerns of Americans ahead of their own antipathy towards those on the other side of aisle, a warrant requirement might have been put in place on the House side of things.

But that didn’t happen. And part of the reason that didn’t happen is because the top-ranking Democrat on the House Intelligence Committee decided to swing votes by lying to his fellow representatives. Dell Cameron brings the news and the screenshots:

Cameron’s post for Bluesky says:

The head Dem on House Intel was caught by Politico reporter blasting disinformation out to colleagues ahead of a vote on the 702 wiretap program

Following that were screenshots of tweets (or whatever the fuck) made by Politico reporter Jordain Carney about the last-minute lobbying performed by Congressman Jim Himes, a Democrat representing Connecticut.

If you can’t see/read the screenshots, here’s what they say:

Peak into some of the behind-the-scenes lobbying on 702 ahead of today’s vote:

Himes sent a text to colleagues, explaining that he opposes warrant requirement, calling it an “extreme amendment that goes far beyond” what PCLOB [Privacy and Civil Liberties Oversight Board] recommends, per message I saw,

But…

Sharon Bradford Franklin (chair of the PCLOB, speaking in individual capacity) told me this morning: “I strongly disagree with the characterization” of the amendment “as going far beyond what the PCLOB recommends”

Called it “consistent” and in many ways “similar” to majority rec

Added that PCLOB report notes it would support Congress going further and said the amendment includes similar exceptions to what PCLOB recommended

In other words, Rep. Himes didn’t like what he was hearing from the PCLOB (if, indeed, he bothered to check its views at all) and didn’t want the Republicans to get a win, so he actively misrepresented the PCLOB’s views to swing votes in favor of clean reauthorization. We’ll never know how many Democrats he swung to his side by doing this but the voting tally suggests a lot of Democrats either bought into Himes’ bullshit or simply couldn’t bear giving House Republicans a win… even if that win would have respected Americans’ rights and (as a bonus) shut down the pro-surveillance efforts of the Republican leader of the House Intelligence Committee.

This now moves on to the Senate, which has its own suggestions for reform. Fortunately, Ron Wyden is a senator, which means there’s still a chance the FBI will be subject to warrant requirements if it wants to search NSA data for US persons’ communications. Here’s the latest from Wyden, who has spent his entire career pushing back against surveillance power expansions:

U.S. Senator Ron Wyden, D-Ore., vowed to oppose legislation passed by the House of Representatives that would reauthorize Section 702 of FISA and expand warrantless surveillance, in a statement today. 

“The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history,” Wyden said. “It allows the government to force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government’s behalf. That means anyone with access to a server, a wire, a cable box, a wifi router, or a phone. It would be secret: the Americans receiving the government directives would be bound to silence, and there would be no court oversight. I will do everything in my power to stop this bill.”

Section 702 remains, at least partially, on the ropes. The FBI’s abuses might finally see themselves curtailed by codification, something that would be far more permanent than its own voluntary oversight efforts or the FISA court’s periodic reprimands. No matter how disingenuous the effort being made by many Republicans is, the end result would be better protections for all Americans — something that can’t be easily undone no matter who’s sitting the White House in 2025.