In the debate over Section 702 reauthorization, one bill is clearly better than the other

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There were further developments last week in the congressional debate over how to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, the 2008 law that allows the government to collect large quantities of communications content in the United States without a warrant if targeting non-U.S. persons overseas.

In a bit of drama, leadership in the House of Representatives had planned to bring dueling bills to the floor, one from the Intelligence Committee and the other from the Judiciary Committee, and whichever one got the most votes would go to the Senate. Following an acrimonious meeting among House Republicans, leadership shelved that plan.

The House and Senate then included a “short”-term reauthorization of 702, without reforms, in the National Defense Authorization Act, which passed both chambers. We use scare quotes around “short,” as the four-month extension to April 2024 could permit the Justice Department and Office of the Director of National Intelligence to secure a new certification from the Foreign Intelligence Surveillance Court that would let the program continue to April 2025.

Given the complexity in this whole debate, it can be difficult to identify why the news media should care. But certain provisions in the House Intelligence Committee bill highlight the risks, particularly to maintaining the confidentiality of source identities.

The main bone of contention between the two committees in the House is whether the FBI needs to get a warrant when it searches communications content collected under Section 702 using search terms associated with U.S. citizens, permanent residents, or people physically located in the United States. That’s relevant to journalists, especially those communicating with non-U.S. person sources overseas, as their communications could be collected “incidentally” and then searched, warrantlessly, to identify sources. (Consider an overseas source, for instance, privy to intelligence shared among the “Five Eyes” — the surveillance partnership between the U.S., Canada, the United Kingdom, Australia, and New Zealand — where leaking that information would be both a foreign intelligence matter and a crime.)

The House Judiciary Committee bill, along with a similar proposal in the Senate sponsored by Sens. Ron Wyden (D-Ore.) and Mike Lee (R-Utah), would require a warrant in that situation. The House Intelligence Committee bill, by contrast, purports to deal with this by eliminating the FBI’s authority to query 702 material solely to search for evidence of crime. But, as we explained last week, “sole-purpose” criminal searches are so rare as to be almost non-existent, and virtually all U.S.-person queries (over 200,000 in 2022 alone) have some foreign intelligence component.

Additionally, as many others have pointed out, the House Intelligence bill would dramatically expand the types of businesses obligated to help the government with 702 collection. Under what’s known as “downstream” collection, agencies can compel communications providers to provide them with subscriber content. The House Intelligence bill would extend that to any business with control over the equipment used to transmit the communications, including, for instance, data centers, shared workspaces, or hotels providing internet access. It’s not hard to see how that could be of concern for journalists or news organizations.

This provision would reverse the holding of an opinion by the Foreign Intelligence Surveillance Court, affirmed by the FISC appellate court, that the only thing that matters in determining whether a company is covered under 702 is whether the company itself provides communications services.

Finally, the House Intelligence bill would reauthorize Section 702 authority for eight years, through 2031, as opposed to the three in the House Judiciary proposal. That’s too long.

In any event, it looks like we’ll have to take this up again next year, when we’ll be back in your inboxes.

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.