H.R. 2670: Conference Report for the National Defense Authorization Act for FY 2024

However, existing statutory “transition procedures,” found in 50 U.S.C. 1801 note, allow certification for surveillance under Title VII to continue for a year from the date the Foreign Intelligence Surveillance Court (FISC) issues a certification for surveillance. In December 2017, as the expiration of Title VII authorities was looming, The New York Times noted that intelligence officials “acknowledged that the government believes it can keep the program going for months” after the expiration of Title VII. The reason the intelligence community argued that could legally continue to operate under Title VII was because the certifications wouldn’t have expired until late April 2019.

The current certifications were granted on April 11, 2023. Even if Title VII authorities lapse, the intelligence community would still operate under the existing certification until April 11, 2024. The date through which Title VII is reauthorized in NDAA gives the intelligence communities time to obtain recertification from the FISC before April 19, 2024. Any certification would be good for a full year, potentially until April 19, 2025.

So while the language in NDAA has been framed as a short-term extension, it’s actually a 16-month extension. That means that this extension of FISA will perpetuate the FBI’s warrantless search of Americans’ communications for another 16 months. The use of FISA to warrantlessly search Americans’ communications isn’t a theoretical notion. The intelligence community conducts more than 200,000 searches of Americans’ communications annually. FISA has been used to wrongfully spy on donors to a congressional campaign, individuals engaged in lawful First Amendment activities, journalists, and members of Congress without a warrant.

Put simply, extending Title VII for 16 months means the worst abuses of FISA could, and likely will, continue. Again, Congress has known for nearly six years that Title VII would expire. Still, because of the proclivity of congressional leadership in both parties for governing crisis, reauthorization without any reform, even into April 2025, is legislative malpractice. Members of Congress in both parties have offered reforms through the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act. These bills protect America while securing our constitutionally protected civil liberties. Unfortunately, congressional leadership appears to be actively giving the intelligence community what it wants, which is to maintain the status quo.

FreedomWorks would withdraw its key vote if language was inserted in the conference report that states the following: “Notwithstanding Section 404 of the FISA Amendments Act of 2008 or any other provision of law, any order, authorization, or directive issued or made under Title VII of the Foreign Intelligence Surveillance Act that is in existence at the time of the enactment of the National Defense Authorization Act for Fiscal Year 2024, or that is issued or made between the enactment of the National Defense Authorization Act for Fiscal Year 2024 and April 19, 2024, shall expire no later than April 11, 2024.”