House Passes Three-Year FISA Surveillance Extension Amid Privacy Battles

The House of Representatives voted to extend a key surveillance program for three years, by a vote of 235 to 191. The measure now heads to the Senate ahead of a Thursday night deadline, where it faces a difficult path to final passage. The vote comes after Speaker Mike Johnson, R-La., struggled for weeks to win over privacy-minded Republicans. GOP defections tanked five-year and 18-month extensions earlier in the month. Forty-two Democrats supported the bill and 22 Republicans opposed it.

The program, Section 702 of the Foreign Intelligence Surveillance Act (FISA), allows U.S. intelligence agencies to intercept the electronic communications of foreign nationals located outside of the United States. Some of the nearly 350,000 targets whose communications are collected under FISA 702 authority each year are in touch with Americans. Their calls, texts and emails can also end up in the trove of information available to the federal government for review.

For almost two decades, a group of lawmakers from both parties has sought reforms to the program, including a requirement for specific court approval before federal law enforcement or intelligence agents are allowed to search for and review an American's information in the FISA database. They argue a warrant requirement would be in line with the privacy protections in the fourth amendment to the Constitution. They failed to secure that provision.

Top intelligence officials said a warrant requirement would inhibit the efficacy of the FISA tool and endanger national security. Stewart Baker, former National Security Agency general counsel, testified before Congress on the subject in January. "Saying, 'oh, you need a separate warrant if you've got a separate interest in getting access to information we already collected for intelligence purposes,'" Baker said, "we shouldn't make that mistake with something as important as things like terrorism or espionage."

But while privacy hawks acknowledge the tool is a key part of U.S. national security infrastructure, they argue that, as written, it lacks necessary protections for Americans. "With FISA, multiple aspects are true at once," Rep. Brad Knott, R-N.C. wrote on X in the days before the vote. First, "FISA is undeniably useful in protecting America against foreign attacks," and second, "If not adequately checked, FISA powers will facilitate the violation of American citizens' Fourth Amendment rights," Knott said.

The fight over those changes — responsible for weeks of turmoil in the House — ultimately resulted in limited modifications. Federal law enforcement will be required to seek approval from attorneys before targeted reviews of Americans' information, each query must have a written justification submitted to the Office of the Director of National Intelligence and misuse of the tool could result in criminal penalties of up to five years in prison.

Senate Republicans could reject or modify reauthorization. As part of his efforts to win over hardliners in his own party, Johnson attached an unrelated provision banning any future Central Bank Digital Currency (CBDC) to the renewal bill — a hypothetical kind of digital dollar issued by the government that some lawmakers are concerned could enable surveillance of Americans' spending. Senate Majority Leader John Thune, R-S.D., has repeatedly told reporters the provision is a no-go in the upper chamber. It is possible that the Senate will strip the CBDC provision and return the bill to the House or pass a separate, stopgap extension to allow FISA reform negotiations to continue.