Senate leaders from both parties are urging their colleagues to renew an expiring warrantless surveillance law before it expires at midnight Friday, as supporters of the law have argued that any expiration would mean a key source of counterterrorism intelligence and other foreign intelligence services would be ignored.
This deadline increases pressure on senators not to vote for changes to the version of the bill the House passed last week, as any change would result in the legislation being sent back to the House rather than quickly on the desk of the House President Biden to arrive.
But the assumption that the tool itself would simply expire on April 19 is significantly misleading. A national security court this month granted a government request to allow the program to operate for another year, even if the law known as Section 702 expires. However, it is true that such a process could lead to minor gaps in the collection of some messages.
Here’s a closer look.
What is Section 702?
It is a law that authorizes the government to collect messages from foreigners abroad who are being targeted for intelligence or counterterrorism purposes, without authorization and from U.S. companies such as AT&T and Google.
The idea is that in the age of the Internet, foreigners’ communications are often handled by domestic companies. But it’s controversial because the government also intercepts messages from Americans to and from these foreign destinations.
The law stems from an unauthorized wiretapping program that President George W. Bush secretly launched after the terrorist attacks of September 11, 2001. It violated the Foreign Intelligence Surveillance Act (FISA), which requires warrants for national security wiretapping on domestic soil.
After the program came to light, Congress legalized a form of it in 2007 in a short-lived law called the Protect America Act. The next year, the legislature enacted Section 702, creating a more permanent exception to FISA. Congress extended Section 702 in 2012 and 2018. It is now expiring.
What proposals are before the Senate?
The House bill would tighten some controls on Section 702 while extending it for another two years. The bill would also expand the program in several ways, including allowing it to be used to monitor foreign drug cartels.
While Senator Chuck Schumer, Democrat of New York and majority leader, has not yet announced the details, it is likely that the Senate will consider several proposed changes sought by surveillance skeptics and reform-minded lawmakers before voting on this bill.
Among them will likely be a proposal to prohibit officials from searching the repository of messages collected under Section 702 for the content of Americans’ communications unless the government receives prior authorization. Privacy advocates have long sought such a change, while national security officials strongly oppose it, saying it would cripple the program. A similar amendment in the House failed by a tie of 212-212.
Another possible change would eliminate an enigmatically worded provision the House added to the bill that expands the types of service providers who can be forced to participate in the program. The provision targets certain cloud computing data centers that the FISA court determined in 2022 do not fall within the current definition of services covered by the law, people familiar with the matter say.
Privacy advocates warn that the wording is too broad and leaves open the potential for abuse. On Thursday, the Justice Department sent a letter to Congress committing to using the expanded definition “exclusively to cover the type of service provider at issue” in the 2022 litigation and committed to reporting to Congress every six months to report their use. The letter also said: “The number of technology companies offering this service is extremely small.”
The Senate could also vote on a proposal to ban the government from purchasing personal data about Americans from third-party data brokers, which it would need authorization directly from a company to obtain. The House of Representatives voted Wednesday to pass a standalone bill containing the measure, called the Fourth Amendment is Not For Sale Act.
Why should the program continue when its validity has expired?
Congress included a provision in the 2008 law to ensure that the government would not be abruptly excluded from use of the Section 702 program.
The program is based on certifications issued each year by the Foreign Intelligence Surveillance Court, and the government directs communications companies to participate. Crucially, the provision, Section 404(b), states that notwithstanding any other provision of the Act, such orders or instructions “shall remain in effect until their expiration date.”
Since the FISA court this month issued a series of certifications that expire April 4 of next year, this provision appears to mean that the Section 702 program can lawfully continue until then, even if Congress allows that the underlying law ceases to be in force in the meantime.
Has this theory been legally tested?
Yes.
In April 2008, then-presiding judge of the FISA court, Reggie B. Walton, ruled that a similar provision in Section 702’s predecessor, the Protect America Act, meant that an order to Yahoo would still have the force of law even after the law itself had expired – and that the court could still force Yahoo to comply.
It is clear, Judge Walton wrote, “that even after this expiration date, the challenged guidelines ‘remain in effect until their expiration.'”
In August of this year, a three-judge panel of the Federal Appeals Court affirmed Judge Walton’s decision. These precedents suggest that the FISA court would rule the same way regarding Section 702.
Does this mean there is no risk of a communication gap?
NO.
While the entire program would continue, there could be at least a temporary pause in debt collection activity at that entity if the statute’s repeal causes a particular provider to refuse to cooperate, according to a senior Justice Department official.
The matter would end up in court, as happened with Yahoo in 2008. Even if the government ultimately prevails, there could be a gap in this company’s collection of communications. It is not clear how quickly the court would resolve such a case.
What kind of argument does the Justice Department think it can win?
The Department believes it can win a dispute in which a program participant refuses to continue to cooperate fully after the statute expires.
In some variations of this scenario, a company could stop sharing all communications from targeted foreign users. Or it could continue handing out those the government wanted to target before the deadline but balk at adding new ones.
The senior Justice Department official said the agency is confident the government will prevail in such a fight in the FISA court, citing the Yahoo precedent. The official, who spoke on condition of anonymity to discuss a legally sensitive issue, also noted that the guidelines were expressly written to anticipate that the government would set new targets over time.
What might the government not do?
The government may be prohibited from forcing a new service to participate in the program.
While large communications companies are already taking part, new internet-based communications services are emerging on a regular basis. If authorities learn that a suspected attacker is using a service that is not part of the program, the government directs him to join the program. According to the Justice Department official, this happens several times a year.
If the provider refuses, the matter goes to the FISA court. However, since the provision focuses on allowing orders already in force to remain valid until their expiry, it is not clear whether the executive branch or the court would have the authority to issue new orders to a new department.
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2024-04-18 16:46:17
www.nytimes.com
