Senate reauthorizes FISA spy program, but not before its midnight expiration

The Senate has passed a bill reauthorizing Section 720 of the Foreign Intelligence Surveillance Act (FISA), a controversial program that allows warrantless spying on foreign “targets,” but a long, knock-down, drag-out fight over amendments kept the Senate in session past midnight on Friday, when the surveillance program officially expired.

To be clear, the spying wasn’t actually going to stop. As Sen. Mike Lee (R-OH) pointed out on the Senate floor on Friday afternoon, the FISA court recently granted a government request to allow the program to continue until April 2025.

Sen. John Cornyn (R-TX) claimed that the FISA court’s extension of Section 702 certification “doesn’t mean the program can continue uninterrupted for another year.”

“In the event of a lapse,” Cornyn continued, “tonight at midnight, some communication service providers will stop cooperating with the United States government. That’s exactly what happened in 2008 when the predecessor of 702, called the Protect America Act, lapsed.” 

Cornyn was keen on the importance of the FISA spying program, saying, “FBI Director Chris Wray said allowing 702 to expire would be, quote, an act of unilateral disarmament in the face of the Chinese Communist Party, close quote. So the stakes are extremely high.”

Sen. Mark Warner (D-VA) also stressed the urgency of reauthorizing of Section 702, claiming that “sixty percent” of the president’s daily brief comes from material collected through the surveillance program.

Less than three hours before Section 702’s expiration, Sen. Rand Paul (R-KY) introduced a version of the Fourth Amendment is Not For Sale Act as an amendment to the reauthorization bill. (It ultimately failed 31-61.) Paul was clearly frustrated at other senators’ comments that it was too late to add new amendments to the bill.

“The idea that we don’t have enough time is a specious one,” Paul said. “The only reason we don’t have time is because the supporters of this bill delayed it to the last hour. We’ve had five years to renew this!” In his colleagues’ defense, the House had three failed votes on Section 702 before it was finally able to send its bill to the other chamber, leaving the Senate with barely a few days before the FISA sunset for its own proceedings.

“The House is still here,” Paul pointed out. “They’re going to be voting tomorrow. We should pass the good amendments today, send them to the House tomorrow.”

The House is scheduled to be in session on Saturday to vote on aid packages and a potential TikTok ban.

With two hours to go before Section 702’s expiration, the so-called act of unilateral disarmament in the face of the Chinese Communist Party, the senators then took a five-minute interlude to congratulate Susan Collins for making her 9000th roll call vote. “Day after day, year after year, our senior-most appropriator has demonstrated, through her dedication: do your homework, show up to vote on everything, on time,” said Sen. Mitch McConnell (R-KY).

Sens. Ron Wyden (D-OR) and Josh Hawley (R-MO) introduced an amendment that would have struck language in the House bill that expanded the definition of “electronic communications service provider.” Under the House’s new provision, anyone “who has access to equipment that is being or may be used to transmit or store wire or electronic communications.” The expansion, Wyden has claimed, would force “ordinary Americans and small businesses to conduct secret, warrantless spying.” The Wyden-Hawley amendment failed 34-58, meaning that the next iteration of the FISA surveillance program will be more expansive than before.

Both Sens. Paul and Dick Durbin (D-IL) introduced separate amendments imposing warrant requirements on surveilling Americans. A similar amendment failed in the House on a 212-212 vote. Durbin’s narrower warrant requirement wouldn’t require intelligence agencies to obtain a warrant to query for those communications, though it requires one to access them.

Sen. Marco Rubio (R-FL) objected to a warrant requirement for Americans’ communications on the basis that many terrorists — like the 2015 San Bernardino shooters or the Boston Marathon bombers — are American. “If we had suspected them of terrorism and —” he began to say, before he caught himself, and then corrected himself, “none of these were prevented, but if these cases emerged today and we suspected them of terrorism, under this amendment you would not be able to surveil them to prevent a terrorist attack.”

Paul’s warrant requirement amendment failed 11-82, Durbin’s amendment failed 42-50.

Lee introduced an amendment would expand the role amicus curiae briefs play in FISA court proceedings. At this point, with about half an hour until midnight and the official expiration of Section 720, senators were visibly flagging.

Rubio began to give his objection to the amendment, but Warner interjected and took over, saying, “If we can get this and pass the bill before noon — before midnight — we can meet our goal, and I commit to work with all to make sure that we can continue to review the amicus proceedings in the next intel authorization bill.” Earlier in the day, Warner told his colleagues that the reauthorization is for “a mere two years,” so they might as well pass it.

Lee’s amendment failed 40-53.

“Mr. President, in the nick of time, bipartisanship has prevailed here in the Senate,” Majority Leader Chuck Schumer said, as the final amendment was defeated. “We are reauthorizing FISA, right before it expires at midnight — twenty minutes before midnight. All day long, we persisted and persisted and persisted in trying to reach a breakthrough, and in the end we have succeeded and we are getting FISA done.”

The Senate commenced voting on the reauthorization bill with fifteen minutes to midnight, clearing a 60 vote threshold at about midnight. As of writing, the Senate still has not officially adjourned.

The bill is now headed to the president. If signed into law, the Section 720 surveillance program will expire in 2026, upon which we will have to do this all over again.