Senate leaders of both parties call on their colleagues The expiring warrantless surveillance law will expire at midnight Friday, as supporters of the law say it will obscure important sources of counterterrorism intelligence and other foreign intelligence. It claims that it needs to be updated before.
The deadline puts pressure on senators not to vote on amendments to the bill that the House passed last week. That's because any amendments would force the bill to return to the House of Representatives rather than quickly get it to President Biden's desk.
However, the suggestion that the tool itself simply expires on April 19th is grossly misleading. The National Security Court this month granted the government's request to allow the program to run for another year, even after the law known as Article 702 expires. Still, it is true that the gap in the collection of some messages may become smaller after such expiration.
Let's take a closer look here.
What is Section 702?
The law authorizes the government to collect messages from U.S. companies such as AT&T and Google from foreign nationals overseas who are targeted for intelligence and counterterrorism purposes without a warrant.
The idea is that in the Internet era, domestic companies are often in charge of communicating with foreigners. However, the matter is controversial because the government also collects Americans' messages to and from these foreign targets.
The law dates back to a warrantless wiretapping program secretly created by President George W. Bush after the Sept. 11, 2001, terrorist attacks. The program violated the Foreign Intelligence Surveillance Act (FISA), which requires a warrant for domestic national security wiretapping.
After the program came to light, Congress legalized its form in 2007 in a short-lived law called the Protect America Act. Lawmakers enacted Section 702 the following year, creating a more permanent exception to FISA. Congress he extended Section 702 in 2012 and 2018, but it is now set to expire again.
What are the proposals going to the Senate?
The House bill would strengthen some of the regulations in Section 702, while also extending it for an additional two years. The bill would also expand the program in several ways, including making it available for scrutiny of foreign drug cartels.
The Senate will consider several amendments sought by surveillance skeptics and reform-minded members before voting on the bill, although Majority Leader Chuck Schumer, D-N.Y., has not yet announced details. This seems highly likely.
That would likely include a proposal to prohibit authorities from searching the repository of messages collected under Section 702 for the content of communications by U.S. persons unless the government first obtains a warrant. . Privacy advocates have been pushing for such changes for years, but national security officials have strongly opposed them, saying they would cripple the program. A similar amendment was rejected in the House of Representatives on a 212-212 vote.
Another amendment would remove a mysteriously worded provision the House added to the bill that expands the types of service providers that can be forced to participate in the program. The provision targets specific cloud computing data centers, which the FISA court ruled would fall outside the current definition of services covered by the law in 2022, according to people familiar with the matter.
Privacy advocates warn that this language is too broad and leaves open the possibility of abuse. On Thursday, the Justice Department sent a letter to Congress urging it to use the expanded definition “to a limited extent on the types of service providers at issue” in cases in 2022 and to report to Congress semiannually on its use. I promised. “The number of technology companies offering this service is extremely small,” the letter said.
The Senate could also vote on a proposal to ban the government from purchasing personal information about Americans from third-party data brokers, which would require a warrant to obtain directly from companies. The House on Wednesday voted to approve a standalone bill containing the measure, called the Fourth Amendment Not for Sale Act.
Why does this program continue when the law has expired?
Congress included a provision in the 2008 law to ensure that the government cannot be abruptly terminated from using the Section 702 program.
The program operates under a certification issued annually by the Foreign Intelligence Surveillance Court, and the government directs carriers to participate. Importantly, the provisions of section 404(b) provide that, notwithstanding any other provision of the statute, these orders or directives “remain in effect'' until their expiration date.
The FISA court issued a series of findings this month that expire next April 4, so this provision means that the Section 702 program will remain open until then, even if Congress allows the underlying statute to expire in the meantime. This seems to mean that it can continue legally.
Has this theory been legally tested?
yes.
In April 2008, then-FISA Court Chief Judge Reggie B. Walton argued that Section 702's predecessor law, the Protect America Act, contained a similar provision, and that the directive to Yahoo was legally binding even after the law itself. The court ruled that this means that it is valid. Although the deadline had expired, the court said it could still force Yahoo to comply.
“Even beyond its expiration date, it is clear that the challenged directive 'remains in effect until its expiration date,'” Judge Walton wrote.
In August of that year, a panel of three federal appeals court judges upheld Judge Walton's decision. These precedents suggest that the FISA Court will issue similar decisions regarding section 702.
Does that mean there is no risk of gaps in the collection of communications?
no.
A senior Justice Department official said the overall program would continue, but if the expiration of the law makes certain providers think twice about cooperating, collections from those groups could be at least temporarily suspended.
The issue will likely end up in court, as happened with Yahoo in 2008. Even if the government ultimately wins the case, there could be differences in the collection of communications from the company. It's unclear how quickly courts will resolve such cases.
What kinds of disputes does the Department of Justice think it can win?
The Department believes it has the potential to win disputes where program participants are hesitant to continue fully cooperating after the law expires.
If this scenario repeats itself several times, the company may stop handing over all of the targeted foreign user's communications. Alternatively, the government could continue to hand over the people it ordered before it expired, but hesitate to add new people.
A senior Justice Department official said the agency was confident the government would prevail in FISA court in such disputes, citing the Yahoo precedent. The official, who spoke on condition of anonymity to discuss a legally sensitive topic, also noted that the directive was written explicitly with the expectation that the government would offer new goals over time.
What should the government not do?
Governments may be prohibited from forcing new services to participate in the program.
Major carriers are already on board, but new Internet-based communications services are also emerging regularly. When a government agency learns that a potential adversary is using services not included in the program, it directs them to join the program. Justice Department officials say such incidents occur multiple times a year.
If the provider balks, the matter goes to FISA court. However, this provision focuses on allowing orders already in force to continue until they themselves expire, giving the executive branch and courts the power to issue new orders for new services. It is not clear whether