Intelligence Surveillance & Privacy

Predicting Support for Section 702 in the Senate

David Forscey
Friday, July 21, 2017, 9:00 AM

The many controversies currently distracting Congress, the White House, and Washington more broadly cannot change an impending deadline: the December 31st expiration of the FISA Amendments Act (FAA) and its most controversial component, Section 702. The five-month countdown and a packed legislative calendar suggest that Capitol Hill is underestimating the time it will take to agree on renewal. When Congress last reauthorized Section 702, it was a relatively mild affair. This time, however, opposition to a “clean” reauthorization is likely to be far stronger.

Published by The Lawfare Institute
in Cooperation With

The many controversies currently distracting Congress, the White House, and Washington more broadly cannot change an impending deadline: the December 31st expiration of the FISA Amendments Act (FAA) and its most controversial component, Section 702. The five-month countdown and a packed legislative calendar suggest that Capitol Hill is underestimating the time it will take to agree on renewal. When Congress last reauthorized Section 702, it was a relatively mild affair. This time, however, opposition to a “clean” reauthorization is likely to be far stronger.

One way to predict the likelihood that Senate Majority Leader Mitch McConnell (R-KY) will achieve the simple majority or supermajority needed to pass Section 702 in its current form is by looking at the voting history of serving senators.

A New Day for Surveillance Policy

Three years ago, the Privacy and Civil Liberties Oversight Board (PCLOB) concluded the following:

The Section 702 program makes a substantial contribution to the government’s efforts to learn about the membership, goals, and activities of international terrorist organizations, and to prevent acts of terrorism from coming to fruition . . . [P]ursuit of the foregoing information under Section 702 has led to the discovery of previously unknown terrorist plots and has enabled the government to disrupt them.

Such statements will haunt civil liberties advocates who want to change the law to include better privacy protections. Before Congress reauthorizes Section 702—and it almost certainly will—these privacy hawks will face the challenge of arguing for amendments that are simultaneously meaningful enough to claim victory, while also narrowly tailored to avoid spooking moderates who have long championed Section 702. The last reauthorization in 2012 left Section 702 untouched, simply resetting the expiration date for another half decade. Privacy groups failed to build a campaign to overcome the unified message of the Intelligence Community (IC): Section 702 defends the United States from terrorism, weapons proliferation, and foreign espionage.

Unfortunately for privacy advocates, the PCLOB finding and other adjustments to surveillance policy—such as the fact that the National Security Agency has ceased “about” collection—provide further support for the position that Section 702 requires no changes. That said, plenty of other factors suggest that that a clean reauthorization of Section 702 is far from a foregone conclusion.

First and foremost, the Trump Administration is running out of time to shore up moderates who could prove problematic. Notwithstanding some media reports suggesting that the Michael Flynn “unmasking” imbroglio could cause the White House to change its official position, Director of National Intelligence Dan Coats says that the IC is supporting 702 reauthorization with only one change: making the law permanent, and ending the recurring debates over the program’s merits. Judging by June’s Senate Judiciary hearing on the matter, eliminating the sunset provisions could be a deal-breaker for Democrats, including reliable allies of the IC. Their support will be critical if McConnell is to avoid a filibuster on Section 702.

Beyond a few statements during hearings, there is no apparent coordinated legislative push to win these Democrats over. The administration had better devote more resources to the impending debate if they hope to prevail against powerful, focused foes who were absent five years ago.

Today’s advocates for surveillance reform now can count new influential allies who were not engaged in surveillance policy when Section 702 was reauthorized in 2012: the world’s largest technology companies. In the wake of Snowden, U.S. technology companies, desperate to protect their market share in foreign commerce, launched intensive lobbying efforts to reform U.S. surveillance law. Industry involvement in the 702 debate will be a significant factor in the Senate, although their precise positions remain somewhat opaque.

Simultaneously, moderate Democrats are disturbed by what they label as gross impropriety by President Donald Trump. Some or all of them might set aside their traditional deference to the IC if it allows them to take a public stand against the White House. The result could be a unified Democratic conference capable of blocking any attempts to override a filibuster.

Past Performance

Those eager to predict whether McConnell will have the votes to pass a clean FAA—with or without Democrats—would be well served to review the historical voting record. Six Senate votes from the past decade offer relevant guidance:

Support for the Protect America Act (PAA) of 2007 – The PAA was the progenitor to the FAA and Section 702. A stopgap measure with a short sunset, the PAA contained fewer civil liberties protections than the subsequent FAA. As such, support for the PAA is a meaningful proxy for gauging a senator’s general acceptance of the policy rationale underlying Section 702, as well as his or her willingness to side with the IC against the urging of privacy advocates.

Support for the FAA of 2008 – Attrition has replaced many of the senators who were in office during the initial vote on Section 702. For obvious reasons, those remaining senators who voted for Section 702 in 2008 will be naturally receptive to arguments that the original provisions remain necessary.

Support for the FAA Reauthorization Act of 2012 – As Susan Hennessey noted four years ago, the decision to reset the clock on Section 702 “was neither a foregone conclusion nor was it without controversy.” Although the debate in 2017 debate could be radically different than that in 2012 (see below), it goes without saying that a past vote to reauthorize 702 without alteration strongly indicates support for the same outcome in 2017.

Opposition to the USA Freedom Act of 2015 – A senator’s support for the USA Freedom Act reveals far less than a senator’s opposition to it; USA Freedom dealt with a type of surveillance quite distinct from that authorized in Section 702. Even “pro-surveillance” senators who strongly supported Section 702 could find plenty reason to vote for USA Freedom. First, USA Freedom dealt with mass surveillance of U.S. citizens, whereas Section 702 addresses targeted surveillance of foreign citizens. Second, while USA Freedom raised the bar for FBI access to metadata, it did not eliminate any intelligence capabilities. Third, reform advocates were equipped with a reasonable argument that the executive had exceeded the legislative intent of the USA PATRIOT Act. For the very same reasons, nearly all senators (with three exceptions) who voted against USA Freedom are likely to remain strong advocates of expansive surveillance authorities in the upcoming 702 debate. USA Freedom was bipartisan, and enjoyed the public blessing of the Director of National Intelligence and the Attorney General. Under such circumstances, it is reasonable to assume that senators who opposed the bill did so on grounds that it imposed unacceptable restraints on U.S. intelligence professionals.

Support for the 2016 McCain-Burr Amendment – After the 2016 terrorist attack at the Pulse nightclub in Orlando, Senators John McCain and Richard Burr proposed an amendment to an appropriations act. The amendment would have expanded FBI access to Internet metadata on U.S. citizens, and made permanent the “Lone Wolf” provision (set to expire in 2019). McCain-Burr fell two votes short of the 60 needed to approve a cloture motion. Because the controversies at issue were distinct from those animating the 702 debate, the McCain-Burr vote offers an imperfect measure for estimating support. But beggars cannot be choosers, and surveillance votes are hard to come by. The McCain-Burr vote is most useful as a proxy for identifying potential Democrats who might cross the aisle.

Party Loyalty – As with the fifth factor, this might strike some as a poor guide for measuring a particular senator’s disposition toward 702 reauthorization. Available evidence suggests, however, that partisans tend to vote with their party. The five other factors strongly indicate that at the very least, most Republicans will support a clean authorization. It is therefore logical to assume that party loyalty held by any GOP holdouts will increase the likelihood that they will follow suit.

So, what are the odds of clean reauthorization?

The above criteria strongly suggest that most Republican senators are a lock. At least 35 sitting Republicans have records that generally demonstrate strong support for the expansive surveillance authorities that are up for debate this fall. And even some GOP senators with less clear-cut voting records have already come out in support. Sen. Tom Cotton (R-AR) and Sen. James Lankford (R-OK) are co-sponsors on a bill to permanently reauthorize Section 702, without substantive changes.

By contrast, Sen. Rand Paul (R-KY) will almost certainly oppose a clean reauthorization. He has already advocated strongly for significant changes to Section 702’s core authorities, and his party membership has not bound him on surveillance issues in the past—he had no qualms about forcing the USA PATRIOT Act to expire.

That said, more than a dozen Republican senators who will be especially interesting to watch. They are:

Some of these senators might well be receptive to amendments to Section 702. Lee has posed questions that indicate he has serious concerns about the program’s scope. Heller is at least interested in improving transparency; he cosponsored the Surveillance Transparency Act of 2013, which would not have made changes to surveillance authorities, but would have required the Attorney General to issue reports on the number of Americans whose communications are collected. Senators Capito, Cassidy, Cruz, Flake, Lankford, Rounds, Scott, and Sullivan did vote for USA Freedom, although that does not necessarily indicate opposition to a clean 702 reauthorization.

In short, McConnell may well need to rely on Democrats if he wants to pass a clean reauthorization, especially in the event of a filibuster. He can probably rely on the support of staunch national security and intelligence community supporters in the Democratic ranks. Senators Bob Casey (D-PA), Claire McCaskill (D-MO), Bill Nelson (D-FL), and Sheldon Whitehouse (D-RI) each voted for the 2007 PAA, the 2008 FAA, the 2012 reauthorization, and the McCain-Burr amendment. (All serving Democrats voted for USA Freedom, but as the methodology makes clear, that does not indicate opposition to a clean reauthorization.) Sen. Dianne Feinstein (D-CA) voted for the PAA, the FAA, and the 2012 reauthorization. When accounting for the dozen additional Democrats who voted for reauthorization in 2012, McConnell appears to have some wiggle room to capture 60 votes.

One thing, however, seems certain: this 702 reauthorization will be as unpredictable and unlike any prior surveillance legislative debate we’ve seen in recent history.

David Forscey is Managing Director for Aspen Digital’s cyber & technology programming at the Aspen Institute. Previously he worked in the Resource Center for State Cybersecurity at the National Governors Association and as National Security Fellow at Third Way. He graduated from Georgetown University Law Center in 2015 and earned his undergraduate degree from the University of Virginia in 2011.

Subscribe to Lawfare