House Republicans are blocking a proposal that would narrow a disputed new provision in a surveillance law, potentially handing President-elect Donald J. Trump broader power to force myriad types of American service providers to help the government spy.
Congress in April added the provision to the law, known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA. The law requires communications service providers inside the United States, like Google or AT&T, to turn over messages of foreign targets — even when they are talking to Americans — without warrants.
Lawmakers in April added the provision to a bill that extended Section 702, which was about to expire, for two years. The provision broadly expanded the types of firms that can be forced to assist the program to include “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.”
The potential breadth of that language drew alarm. But because the Senate was facing a time crunch to pass the bill, it pushed aside those concerns with reassurances that Congress would revisit the issue and tighten up the provision in another intelligence bill later in 2024.
The session is now drawing to a close, and lawmakers are folding that intelligence bill into a must-pass defense bill whose final version is expected to be unveiled soon. But in negotiations between the House and the Senate, the section with the intended fix has been dropped, people familiar with the negotiations say.
Privacy and civil liberties advocates have long criticized Section 702, which traces back to the once-secret warrantless surveillance program the Bush administration created after the terrorist attacks of Sept. 11. In more recent years, Section 702 has also drawn fire from Republicans who aligned themselves with President-elect Donald J. Trump’s hostility toward law enforcement and spy agencies.
The new provision was written vaguely to mask its purpose from foreign adversaries. But The New York Times has reported that the motivation behind it was a classified court ruling, which stated that the original definition in the law did not cover cloud-computing data centers.
Privacy advocates, however, said the vague wording of the law could be interpreted as going much further and opening the door to abuses. For example, they raised the prospect of forcing a janitorial service that cleans a newspaper office to attach wiretapping equipment to the computers of reporters who talk to foreign sources.
The public debate over the provision was complicated by the fact that the purpose of the change remained classified so lawmakers could not directly address it. But some proponents of the change acknowledged that its language went beyond what the government was actually seeking to accomplish. Still, with the law set to expire, they argued that there was no time to amend a bill and urged the Senate to swiftly pass it without changes.
To provide reassurance about approving the overly broad provision, the Justice Department pledged in a letter to use the provision only narrowly, and the chairman of the Senate Intelligence Committee, Mark Warner, Democrat of Virginia, said during the floor debate that he would work with Congress to “further refine” it in a separate intelligence bill later in 2024.
That offer worked. The Senate voted down a proposed amendment to strip the flawed provision from the bill, and then passed the overall legislation minutes after Section 702 expired.
But Mr. Warner’s efforts to follow through on narrowing the disputed provision now appear to have faltered.
He inserted language in the Senate’s version of the intelligence bill that would implicitly limit the government’s use of the new authority to cloud-computing data centers, rather than to myriad types of services. But the House version of the intelligence bill does not contain that language.
Lawmakers are now rolling the intelligence bill into the annual National Defense Authorization Act, which is expected to easily pass in the coming weeks. But House Republican negotiators have insisted that the corrective language stay out of the final defense bill, according to multiple people with knowledge of talks.
They asked for anonymity to discuss private deliberations.
House Republicans with power over what parts of the Senate’s intelligence bill will make it into the defense bill include Speaker Mike Johnson of Louisiana; the chairman of the House Armed Services Committee, Representative Mike D. Rogers of Alabama; and the chairman of the House Intelligence Committee, Representative Mike Turner of Ohio.
Spokesmen for each declined to comment or did not respond to requests for comment. A spokeswoman for Mr. Warner said that he remained determined to narrow the provision “whether it’s in this Congress or the next.”
Several legislative aides said the next chance for Congress to address the provision would most likely be in mid-2026, when Section 702 is set to expire. But Mr. Warner will no longer lead the Intelligence Committee starting next year, since Republicans won a Senate majority in November.
Privacy rights advocates who had denounced the expansion of Section 702 authority in the first place expressed frustration. Leaving the provision in place means there is “staggering” potential for abuse, cautioned Elizabeth Goitein of the Brennan Center for Justice at New York University’s law school.
“Senators agreed to vote for this provision based on a promise by the Senate Intelligence Committee chair that it would be fixed in subsequent legislation,” she said. “Now House leaders are retroactively trying to unravel that bargain.”
And Senator Ron Wyden, an Oregon Democrat who is skeptical of government surveillance powers, said he had warned against the expansion.
“If that fix doesn’t go through and the next administration misuses these sweeping new FISA powers,” he said, “no one will be able to claim they didn’t see it coming.”
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