Leaders of both parties in the Senate urge their colleagues to renew an expiring warrantless surveillance law before it expires at midnight Friday, as the law’s supporters argued that any expiration would mean ignoring a key source of counterterrorism and other foreign intelligence.
This delay adds pressure on senators not to vote in favor of any amendments to the version of the bill that the House passed last week, because any changes would force the legislation to return to the House rather than quickly arrive on President Biden’s desk.
But the suggestion that the tool itself would simply become obsolete on April 19 is very 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. It is nevertheless true that such an expiration could result in smaller gaps in the collection of certain messages.
Here’s a closer look.
What is Section 702?
This is a law that allows the government to collect, without a warrant and from U.S. companies like AT&T and Google, messages from foreigners abroad targeted for intelligence or counterterrorism purposes.
The idea is that in the Internet age, foreigners’ communications are often handled by domestic companies. But it’s controversial because the government also scans Americans’ messages to and from these foreign targets.
The law dates back to a warrantless wiretapping program that President George W. Bush secretly created after the terrorist attacks of September 11, 2001. It violated the Foreign Intelligence Surveillance Act, or FISA, which requires warrants for national security wiretapping on national soil.
After the program was revealed, Congress legalized a form of it in 2007 in a short-lived law called the Protect America Act. Lawmakers enacted Section 702 the following year, creating a more durable exception to FISA. Congress extended Section 702 in 2012 and 2018. It is now set to expire again.
What are the proposals before the Senate?
The House bill would strengthen some controls on Section 702, while extending it for two more years. The bill would also expand the program in several ways, including authorizing its use to examine foreign drug cartels.
Although Senator Chuck Schumer, Democrat of New York and Majority Leader, has not yet announced details, it seems likely that before voting on this bill, the Senate will consider several proposed amendments sought by surveillance skeptics and reform-minded lawmakers.
Among them will likely be a proposal to prohibit officials from searching the repository of messages collected under Section 702 for the contents of Americans’ communications unless the government first obtains a warrant. Privacy advocates have long called for 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 vote of 212 to 212.
Another possible amendment would remove a cryptic provision the House added to the bill that expands the type of service providers that can be required to participate in the program. The provision targets certain data centers for cloud computing that the FISA court ruled in 2022 did not fall under the law’s current definition of covered services, according to people familiar with the matter.
Privacy advocates warned that the wording was too broad, leaving open the possibility of abuse. The Justice Department on Thursday sent a letter to Congress pledging to use the expanded definition “exclusively to cover the type of service provider at issue” in the 2022 litigation and pledging to report to Congress every six months of its use. The letter also stated that “the number of technology companies providing this service is extremely small.”
The Senate could also vote on a proposal to prohibit the government from purchasing personal information about Americans from third-party data brokers that it would need a warrant to obtain directly from a company. The House voted Wednesday to approve a standalone bill containing the measure, called the Fourth Amendment Is Not For Sale.
Why would the program continue if its law has expired?
Congress included a provision in the 2008 law ensuring that the government would not be abruptly blocked from using the Section 702 program.
The program operates under certifications issued annually by the Foreign Intelligence Surveillance Court, and the government directs communications companies to participate. Basically, the provision, Section 404(b), states that despite any other provision of law, such orders or directives “shall remain in force” until their expiration date.
Given that the FISA Court this month issued a series of certifications that expire next April 4, this provision appears to mean that the Section 702 program can legally continue to operate until then, even if Congress allows the underlying law to expire in the meantime.
Has this theory been legally verified?
Yes.
In April 2008, then-FISA Court Presiding Judge Reggie B. Walton ruled that a similar provision of Section 702’s precursor law, the Protect America Act, meant that a directive directed to Yahoo still had the force of law after the act itself. had expired – and that the court could still compel Yahoo to comply.
It is clear, Judge Walton wrote, “that even after this expiration date, the challenged guidelines ‘remain in effect until they expire.’
Last August, a three-judge panel of the federal appeals court upheld Judge Walton’s decision. These precedents suggest that the FISA court would rule similarly regarding Section 702.
Does this mean that there is no risk of gaps in the collection of communications?
No.
Even if the overall program would continue, if the law’s expiration causes a particular vendor to be reluctant to cooperate, there could be at least a temporary pause in collections from that entity, according to a senior Justice Department official .
The case would end up in court, as happened with Yahoo in 2008. Even if the government ultimately prevails, there could be a gap in the collection of that company’s communications. It’s unclear how quickly the court would resolve such a case.
What kind of litigation does the Justice Department think it can win?
The department believes it could win a dispute in which a program participant is reluctant to continue fully cooperating after the law expires.
In some versions of this scenario, a company could stop transmitting all communications from targeted foreign users. Or it could continue to return those the government ordered it to target before it expired, but be reluctant to add new ones.
The senior Justice Department official said the agency was confident the government would prevail in the FISA court in such a fight, citing Yahoo precedent. The official, who spoke on condition of anonymity to discuss a legally sensitive topic, also noted that the guidelines are explicitly written to anticipate that the government will provide new targets over time.
What might the government not be allowed to do?
The government may be prohibited from forcing a new service to begin participating in the program.
While large communications companies are already participating, new Internet-based communications services are regularly emerging. When agencies learn that a suspected adversary is using a service that is not part of the program, the government orders them to join the program. According to the Justice Department official, this happens several times a year.
If the supplier balks, the matter is taken to the FISA court. But since the provision is intended to allow orders already in force to continue until their expiration, it is not clear whether the executive or the court would have the power to issue new orders against a new service.
News Source : www.nytimes.com
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