How a sweeping law to spy on foreigners is dividing Congress

WASHINGTON – When members of Congress are still voting at 2:30 in the morning, it's usually a sign there's a problem on Capitol Hill.

That fact was all too clear last week as Republican Speaker Mike Johnson scrambled on the floor of the House of Representatives to broach a last-minute deal in the dead of night with members of his own party.

The pressing issue was a controversial section of a major government spying law, which has increasingly consumed Capitol Hill as a key deadline to renew it approaches. Since returning from their spring break, lawmakers have been mired in contentious debates, pitting their concerns about protecting Americans' privacy and civil liberties against a simultaneous need to keep citizens safe.

The 9/11-era statute, known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA, allows U.S. spy agencies to gain access to foreigners' texts, calls and emails without a warrant. Though the intent of the surveillance program is to track enemy spies and extremists, Americans' communications can get swept up in it too, opponents say.

As a reauthorization deadline approached in recent days, civil liberty hawks in Congress dug their heels in, blocking Republican leaders from pushing it through without any changes.

"Warrantless backdoor surveillance of American citizens is happening," Rep. Keith Self, R-Texas, said on social media. "That's wrong."

The stakes are high: With the Iran war increasing terrorism concerns in the United States and globally, top lawmakers say a deal needs to come together soon.

"Success in Venezuela and Iran wouldn’t have been possible without this important national security tool," said Sen. Tom Cotton, R-Arkansas, chairman of the Senate Intelligence Committee.

President Donald Trump, despite repeatedly alleging privacy abuses against himself by the U.S. intelligence community under previous administrations, is urging Congress to pass an 18-month extension of the law without major revisions.

"The fact is, whether you like FISA or not, it is extremely important to our military,” he wrote on his social media platform Truth Social.

Stopgap buys time amid bipartisan scrutiny

Even amid the Iran war, fresh bipartisan scrutiny over Section 702 has created strange bedfellows on Capitol Hill.

In a joint op-ed in The New York Times April 17, Mike Lee, arguably one of the most conservative Republicans in the Senate, and Sen. Dick Durbin, a staunch Democrat, called for significant changes to Section 702. They argued it has routinely allowed agencies like the FBI to search through the private communications of American citizens without a warrant. The senators have touted a bill they've introduced that they say would close privacy loopholes and establish more guardrails.

"That is a clear violation of rights protected by the Constitution," they wrote. "Congress should not needlessly rush to extend this authority without the American people and their elected representatives knowing the full truth about the extent of ongoing abuses and compliance failures."

Other GOP members of Congress are separately saying they wouldn't vote for a FISA extension if it doesn't include voting restrictions ahead of the midterm elections. Lawmakers like Rep. Anna Paulina Luna, R-Florida, want to attach it to the SAVE America Act, a top legislative priority of Trump's that would, among other things, require proof of citizenship to register to vote. But Speaker Johnson and Senate Majority Leader John Thune, R-South Dakota, have shot down the prospects of that idea several times.

On April 17, both chambers of Congress unanimously passed a 10-day stopgap measure, kicking the deadline to renew Section 702 until April 30. The delay gave lawmakers roughly another week to come up with a compromise.

Zachary Schermele is a congressional reporter for USA TODAY. You can reach him by email at [email protected]. Follow him on X at @ZachSchermele and Bluesky at @zachschermele.bsky.social.