One communications provider informed the National Security Agency that it would stop complying on Monday with orders under Section 702 of the Foreign Intelligence Surveillance Act, which enables U.S. intelligence agencies to gather without a warrant the digital communications of foreigners overseas — including when they text or email people inside the United States.
Another provider suggested that it would cease complying at midnight Friday unless the law is reauthorized, according to the people familiar with the matter, who spoke on the condition of anonymity to discuss sensitive negotiations.
The companies’ decisions, which were conveyed privately and have not previously been reported, have alarmed national security officials, who strongly disagree with their position and argue that the law requires the providers to continue complying with the government’s surveillance orders even after the statute expires. That’s because a federal court this month granted the government a one-year extension to continue intelligence collection.
Section 702 requires the government to seek approval from the Foreign Intelligence Surveillance Court for the categories of intelligence it wants to collect. The court has issued “certifications” for collection involving international terrorism, weapons of mass destruction and foreign governments and related entities. Those certifications are good for one year and were renewed this month at the government’s request.
U.S. officials have long argued that the law is a vital means of collecting the electronic communications on foreign government adversaries and terrorist groups. But its renewal has become an unusually divisive flash point, aligning conservative Republicans and liberal Democrats who are wary of granting the government broad surveillance authorities without new restrictions.
The people familiar with the efforts to keep the companies in compliance declined to name them, but they said their loss would deal a significant blow to U.S. intelligence collection.
“It’s super concerning,” said one U.S. official of the potential loss of intelligence. “You can’t just flip a switch and turn it back on again.”
U.S. officials began to hear Friday afternoon that the providers were planning to stop compliance unless Section 702 was reauthorized.
Senators are attempting to come to an eleventh-hour agreement on amendments on the legislation Friday night to quickly reauthorize the measure and avoid any lapse. Last week, the House renewed Section 702, but only for two years — and only after privacy hawks failed to pass an amendment that would have required U.S. intelligence agencies to obtain a warrant to review Americans’ communications collected under the program. That bid failed in a dramatic 212-212 tie vote.
The House approval came despite former president Donald Trump’s entreaty on social media to “KILL” the bill, in part due to the spurious charge that the federal surveillance power had been used to spy on his 2016 campaign.
First passed in 2008 and reauthorized several times since then, the law enables the NSA to collect without a warrant from U.S. tech companies and communications providers the online traffic of non-Americans located overseas for foreign intelligence purposes. Communications to or from foreign targets deemed relevant to FBI national security investigations — about 3 percent of the targets, according to the government — are shared with the bureau. But the law is controversial because some of those communications may involve exchanges with Americans, which the FBI may view without a warrant.
“The House bill represents the biggest expansion of surveillance in 15 years since Section 702 was originally created, and a shameful Congress would be expanding surveillance at a time when reforms are needed,” said Jake Laperruque, deputy director of the Center for Democracy and Technology’s Security and Surveillance Project.
U.S. security officials, for their part, for years have extolled the benefits of the law, with White House officials saying that the intelligence collected accounts for more than 60 percent of the president’s daily briefing. FBI Director Christopher A. Wray recently disclosed that it helped the bureau discover that Chinese hackers had breached the network of a U.S. transportation hub, and that it had helped thwart a terrorist plot last year in the United States involving a potential attack on a critical infrastructure site.
“Failure to reauthorize 702 — or gutting it with some kind of new warrant requirement — would be dangerous and put American lives at risk,” Wray told Congress this month.
