Expansion of Section 702 explicitly references press queries

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On April 20, President Joe Biden signed a two-year expansion of the surveillance authority known as Section 702, which permits the government to collect communications content and data on U.S. soil without a warrant when targeting non-U.S. citizens or permanent residents overseas. As we’ve written many times, Section 702 is of concern for journalists — particularly with respect to protecting confidential source identities — because the program can collect emails, texts, and other data when a U.S. journalist is communicating with a 702 target.

The reauthorization, which passed the Senate 60 to 34, was pretty “clean” in the sense that efforts to include meaningful reforms fell short. The main priority for reformers — a warrant requirement for U.S. person “queries” of 702 databases — failed by a vote of 42 to 50. And in a sign of the transpartisan nature of the issue, the “yeas” and “nays” on the vote were almost evenly split between Republicans and Democrats. Senators rejected another amendment, to strike an expansion of the types of entities that can be compelled to turn over data under the program, by a vote of 34 to 58.

There has been a lot of attention paid to that latter expansion in Section 702, and we’ll cover that in a second. But looking at the text of H.R. 7888, the reauthorization measure, there’s a big red flag for the press.

That is, one of the major criticisms of the Section 702 program has been significant compliance issues at the FBI, with improper queries of protesters, political figures and donors, and, notably, journalists (see page 60 here). H.R. 7888 includes procedural changes prompted by those controversies, but, in doing so, underscores the concern that query terms related to U.S. journalists can be used to search Section 702 data.

Specifically, section 2(d) of H.R. 7888 would amend Section 702 to mandate additional approval requirements for “sensitive queries,” namely that the deputy director of the FBI sign off on queries that use a “query term reasonably believed to identify a United States elected official, an appointee of the President or a State governor, a United States political candidate, a United States political organization or a United States person prominent in such organization, or a United States media organization or a United States person who is a member of such organization” (emphasis added).

Two things stand out there. 

One, the simple fact that the FBI can run queries with, say, a U.S. journalist’s phone number or email address against 702 databases stands in sharp contrast to the bright line prohibition on using search warrants, court orders, or subpoenas to get the same information in criminal cases when journalists are acting within the “scope of newsgathering.” The Justice Department created that bright line in its 2022 revisions of the DOJ policy governing the use of compulsory process to seek information from or of journalists.

Two, even under the pre-2022 version of that policy, the attorney general would have had to approve the use of process to get the same information that is available under Section 702 with FBI deputy director sign-off. That is also a lower level review than the DOJ provided for in a set of memorandums requiring approval by the attorney general, deputy attorney general, or, if they direct, the assistant attorney general for the National Security Division for “traditional” Foreign Intelligence Surveillance Act warrants and court orders. (We do not know if those memorandums remain operative, but the point still stands.)

That’s all doubly troubling given the particular sensitivity of Section 702 collected material for journalists, especially those whose reporting requires them to regularly communicate with non-U.S. sources overseas. In addition to those interactions being intercepted and monitored without a warrant, one could imagine the use of “contact-chaining” and similar techniques in efforts to identify other sources.

Finally, as noted above, H.R. 7888 expands the types of entities that can be compelled to disclose data under 702: those that have “access to equipment that is being or may be used to transmit or store wire or electronic communications.” According to reporting, Congress included the provision because of a decision by the FISA court in 2022 finding that a cloud computing data center fell outside the scope of Section 702. The exact impact of the amendment remains unclear, but it does appear to be a significant expansion of the law. And, as some have pointed out, it may extend Section 702 demands to entities without either the resources or legal know-how to challenge those demands before the FISA court.

As always, we’ll keep you posted as this develops.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.