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House Passes 2-Year Surveillance Law Extension Without Warrant Requirement

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Speaker Mike Johnson scaled back the measure to two years from five after Donald J. Trump had urged Republicans to “kill” it. An effort to require warrants to search for Americans’ messages failed on a tie.

Mike Johnson, in a blue suit and red-striped tie, walks with a crowd of reporters in the Capitol on Friday.

Speaker Mike Johnson’s decision to scale down the bill meant that if Donald J. Trump were to win the 2024 election, he would control the White House when it came up for renewal.Credit…Jason Andrew for The New York Times

In a major turnaround, the House on Friday passed a two-year reauthorization of an expiring warrantless surveillance law that had stalled this week amid G.O.P. resistance stoked by former President Donald J. Trump.

The bill would extend a provision known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA, that is set to lapse next Friday. It was a remarkable resuscitation of the measure from a collapse just days ago on the House floor after Mr. Trump had urged lawmakers to “kill” FISA.

But House passage came after lawmakers only narrowly defeated a bipartisan effort to restrict searches of Americans’ messages swept up by the program — a major change that national security officials had warned would gut the law. The vote reflected widespread skepticism of the program.

Grasping to salvage the measure before the law expires, Speaker Mike Johnson put forward a shorter extension than its originally envisioned five years, persuading hard-right Republicans who had blocked the bill to allow it to move forward. The final vote was 273 to 147, with both parties split. One hundred and twenty-six Republicans joined 147 Democrats in favor, while 88 Republicans and 59 Democrats were opposed.

The legislation still must be cleared by the Senate and signed by President Biden. But the main obstacle has been in the House, where Republicans are deeply divided and Mr. Johnson had tried and failed three times to push it through.

Until nearly the last minute on Friday, it was unclear what shape the final bill would take as the House considered a series of proposed changes whose fate various members had said would determine their positions. Most prominently, in a nail-biter of a vote, lawmakers just barely rejected a proposal to ban F.B.I. agents and intelligence analysts from using Americans’ identifiers — like email addresses — to query the repository of messages swept up by the program unless those officials first get warrants.

In an extraordinary moment on the House floor, the proposal to add a warrant requirement failed on a tie — 212 to 212, with 13 members not voting and Mr. Johnson breaking with custom to cast a decisive “no” vote. The amendment split the two parties, with 126 Democrats and 86 Republicans voting against it, while 128 Republicans and 84 Democrats voted in favor.

Mr.. Trump had implored lawmakers this week to “kill” the law undergirding the surveillance program.Credit…Jamie Kelter Davis for The New York Times

Civil liberties advocates have long sought such a restriction to protect Americans’ privacy rights. But national security officials have argued that it would cripple the program because they typically use it early in investigations, such as when trying to learn more about a phone number or an email account found to be in contact with a suspected foreign spy or terrorist before there is enough evidence to meet a probable cause standard for a warrant.

National security hawks had handily thwarted the warrant proposal in previous years, but it gained momentum this time because progressive civil libertarians have been joined by right-wing Republicans who aligned themselves with Mr. Trump’s hostility to the F.B.I. and the intelligence community.

Proponents of adding a warrant requirement were led by top members of the Judiciary Committee, including its chairman, Representative Jim Jordan, an Ohio Republican, and its ranking Democrat, Representative Jerrold Nadler of New York. They and their allies argued on Friday that making that change was crucial to protecting Americans’ constitutional rights.

“Searching for Americans’ private communications in the 702 database — communications the government otherwise would not have access to without a warrant — is the constitutional equivalent of conducting a warrantless search,” Mr. Nadler said.

Opposition to the warrant amendment was driven by members of the Intelligence Committee, including its leaders, Representatives Michael R. Turner of Ohio, the Republican chairman, and Jim Himes of Connecticut, its top Democrat. They argued that adding a warrant requirement would effectively “blind” security officials to potentially crucial information it already possessed.

The House did make several other significant modifications to the bill. They included allowing the Section 702 program to be used to gather intelligence on foreign narcotics trafficking organizations and to vet potential foreign visitors to the United States; empowering certain congressional leaders to observe classified hearings before a court that oversees national security surveillance; and expanding the types of companies with access to foreign communications that can be required to participate in the program.

Privacy advocates expressed disappointment that the House expanded the program while rejecting their long-sought goal of imposing a warrant requirement.

Representatives Matt Gaetz and Chip Roy were two Republican votes against the bill.Credit…Jason Andrew for The New York Times

“It’s painful to get this close and still end up without this basic protection for Americans’ rights,” said Elizabeth Goitein, of the Brennan Center for Justice at New York University School of Law. “But the closeness of the vote gives civil liberties advocates hope. This is only a two-year reauthorization, and if it passes, we can build on this momentum in future votes.”

Such policy disputes over the measure have been overshadowed in recent days by a political furor prompted by Mr. Trump. This week he directed lawmakers in a social media post to “KILL FISA,” asserting that it had been used to illegally spy on his 2016 presidential campaign.

Mr. Trump’s contention was incoherent as a matter of law and policy because there are two types of FISA surveillance and the type that is expiring — Section 702 — has nothing to do with the type the F.B.I. used in its investigation into the links between his campaign and Russia amid Moscow’s covert efforts to help him win the 2016 election.

Wiretapping for national security investigations targeting Americans or people on domestic soil is governed by the traditional type of FISA, which requires warrants; an inspector general found that the F.B.I. had botched its warrant applications to wiretap a former Trump campaign adviser during the Russia investigation. That type of FISA, which Congress created in 1978, is not expiring.

By contrast, Section 702 allows the government to collect, from U.S. companies like AT&T and Google, the messages of foreigners abroad who have been targeted for foreign intelligence or counterterrorism purposes without a warrant — even when they are communicating with Americans. It legalized a form of the warrantless wiretapping program former President George W. Bush secretly created after the terrorist attacks of Sept. 11, 2001.

Still, Mr. Trump maintains substantial political sway over Republicans in Congress, and after his broadside, 19 House Republicans, most aligned with the ultraconservative House Freedom Caucus, voted on Wednesday to block the bill’s consideration, sending leaders back to the drawing board.

Representative Pramila Jayapal was one 59 Democrats to vote against the reauthorization.Credit…Jason Andrew for The New York Times

Mr. Johnson’s decision to reduce the bill to two years from five meant that if Mr. Trump were to win the 2024 election, he would control the White House when it came up for renewal. It enabled the hard-right Republican defectors to claim victory while allowing the matter to move forward, and all 19 of them switched their positions on Friday and voted to bring up the bill.

It remains to be seen whether the Senate will pass the bill before Section 702 expires next Friday. But that is a soft deadline: The program can continue operating until April 2025 because last week the FISA court granted a government request authorizing it for another year. Under the law, surveillance activity can continue so long as there are active court orders allowing it, even if the underlying statute expires.

Even so, the intelligence community has urged Congress to reauthorize the program before it enters that sort of legal limbo, raising the possibility that providers might balk at continuing to cooperate and leading to gaps in collection until any ensuing court fights over the question can be resolved.

While the bill does not have the warrant requirement long sought by privacy advocates, it does impose many new restrictions on how the F.B.I. may search for Americans’ information in the repository of communications swept up under the program.

There are limits on how that material can be searched for and used, but the bureau has repeatedly violated those constraints in recent years — including improperly querying for information about Black Lives Matter protesters and people suspected of participating in the Jan. 6, 2021, Capitol riot.

The F.B.I. has since tightened its system to reduce the risk of queries that violate the standards. The bill under consideration would codify those changes and add reporting requirements, as well as limit the number of officials with access to the repository of raw information.

Kayla Guo contributed reporting.

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