The House Seeks to Crown a (Section 702) Queen

Editor's note: This version has been updated to better accurately portray the proposal from the Privacy and Civil Liberties Oversight Board.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) will face a major vote this week in the House of Representatives. Last month, Congress started actively considering legislative proposals that reauthorize the critical foreign intelligence tool. Until last week, most of the attention centered on two recently introduced Senate bills that represented starkly diverging views on how to reauthorize Section 702 and reform other FISA processes, neither of which has been marked up in committee. Now, the House, following the markup of two different bills by two of its committees, will have its say.

The House is poised to consider two proposals on the floor, one from the House Judiciary Committee and one from the House Permanent Select Committee on Intelligence (HPSCI), that also offer very different answers on questions of surveillance reform. House Judiciary’s sweeping privacy-centric changes would significantly limit the government’s use of Section 702 information, while the HPSCI’s narrower compliance-oriented reforms would preserve or expand the tool’s current utility. Having failed to achieve consensus behind closed doors and facing a challenging set of political dynamics, the House may turn to an unusual floor procedure, known as a “queen of the hill” vote, this week to consider the issue.

Congress may also buy additional time to consider Section 702 reauthorization with a short extension tucked into the National Defense Authorization Act (NDAA). If the NDAA passes,  lawmakers will have until April 2024 to try to resolve their deeply different views on Section 702’s future.

HPSCI Bill: FISA Reform and Reauthorization Act of 2023

On Dec. 7, the HPSCI voted to report out a bill reauthorizing Section 702 through 2031 in its “FISA Reform and Reauthorization Act of 2023.” The bill largely incorporates recommendations that the HPSCI’s FISA Working Group teed up in mid-November. That report called Section 702 “one of the most effective tools used by the Intelligence Community” and acknowledged there had been “disturbing abuses of Section 702 and other provisions of FISA impacting U.S. persons.” The HPSCI’s final bill committee reflects this measured stance. It does not require the government to obtain a probable cause court order before running a U.S. person query. This feature aligns the HPSCI bill with the posture of the bill from the Senate Intelligence Committee. 

The HPSCI’s bill tightens restrictions on the FBI’s querying of incidentally collected U.S. person data. The bill revokes the FBI’s ability to conduct “evidence-of-a-crime” queries, outside of narrow exceptions. This change likely will have a muted operational impact because the FBI has not relied on these queries to drive its investigations. In 2022, out of the FBI’s roughly 204,000 U.S. person queries, only 16 were identified as solely having an “evidence-of-a-crime” purpose, according to the intelligence community’s Annual Statistical Transparency Report.

Signaling a strong compliance focus on U.S. person queries, the bill codifies recent FBI policy changes that have curbed noncompliant U.S. person queries and mandates that the Justice Department audit the FBI’s U.S. person queries. The bill also requires FBI supervisory or attorney approval for all U.S. person queries. The HPSCI notes this provision will “reduce FBI personnel authorized to approve U.S. person queries by over 90 percent.” Sensitive queries will require even higher levels of approval.

The bill responds to the FBI’s troubled handling of FISA applications associated with its Crossfire Hurricane investigation. Among other changes, the use of press reports or information from political organizations in applications for probable cause court orders would be prohibited outside of certain exceptions. Additionally, all government applications to the Foreign Intelligence Surveillance Court (FISC) would require a certification of accuracy. Applications for probable cause orders would, specifically, require sworn statements to accompany underlying factual assertions. The bill creates criminal liability for and enhances a range of penalties associated with intentional FISA-related misconduct. 

The bill alters some FISC operations. Subject to some exceptions, Section 305 of the bill requires the FISC to appoint amicus curiae—preferably with expertise in privacy, civil liberties, and intelligence collection—to assist in considering any Section 702 certification. Current law only provides for the FISC, with some discretion, to appoint amici to assist in considering a FISA application or review that presents a “novel or significant interpretation of the law.” Additionally, the FISC would have to designate an attorney to scrutinize Title I applications for electronic surveillance of U.S. persons. The current application process for a Title I court order on an American citizen involves only the government and the FISC.

The HSPCI’s bill also revises two core FISA statutory definitions. It expands the statutory definition of “foreign intelligence information” to include information related to “international drug production, distribution, and financing,” which will enable the government to apply Section 702 authorities against counternarcotics priorities. The bill’s sponsors intend for this revision to help stem the flow of illegal drugs, fentanyl, and precursor chemicals into the United States.

More controversially, in Section 504, the bill broadens the definition of “electronic communications service provider” (ECSP) to include “any service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored or equipment that is being or may be used to transmit or store such communications.”  Section 504 also adds “custodian” to the definition of ECSP. 

As Mark Zwillenger and Steve Lane have noted:

These changes would vastly widen the scope of businesses, entities, and their affiliates who are eligible to be compelled to assist 702 surveillance. By including any “service provider”—rather than any “other communication service provider”—that has access not just to communications, but also to the “equipment that is being or may be used to transmit or store ... communications,” the expanded definition would appear to cover data centers, colocation providers, business landlords, shared workspaces, or even hotels where guests connect to the Internet. And the addition of the term “custodian” ... could be understood to sweep in any third party involved in providing equipment, storage, or even cleaning services to such entities. ... The new definition, when combined with NSA’s ability to conduct “upstream collection,” could give the government warrantless access to any communication system in America through which any one-side-foreign communication could be found.

The HPSCI summarizes the provision as “account[ing] for technological changes in transmitting and storing such communications,” which suggests narrower legislative intent. The Foreign Intelligence Surveillance Court of Review appeared to invite this update in a recent opinion that observed the “[definition at issue] was written in 1986, hence premised on Internet architecture now almost forty years old. Any unintended gap in coverage revealed by our interpretation is ... open to reconsideration by the branches of government whose competence and constitutional authority extend to statutory revision.“ That case stemmed from an unnamed provider that disputed its status as an ECSP after receiving a Section 702 order from the government.

House Judiciary Bill: Protect Liberty and End Warrantless Surveillance Act

On Dec. 6, the House Judiciary Committee reported language reauthorizing Section 702 in its Protect Liberty and End Warrantless Surveillance Act. The wide approval margin among committee members, who voted to approve it 35 to 2, underscored the rare bipartisan agreement that Republican committee chairman Jim Jordan and Democratic ranking member Jerry Nadler achieved in crafting the sweeping legislation. 

The bill would make significant changes to Section 702 collection. The inclusion of a warrant requirement and extensive privacy safeguards aligns the bill’s approach with that of the Government Surveillance Reform Act (GSRA), put forward separately by Sens. Ron Wyden and Mike Lee and several House sponsors. Like the GSRA, the Protect Liberty Act reauthorizes Section 702 only with steep restrictions in how the government can use the authority.

The bill’s provisions on Section 702 querying get to the heart of the current reauthorization controversy. Section 2(b) prohibits the government from conducting U.S. person queries unless it obtains a probable cause warrant. This general prohibition comes with exceptions, including during emergency situations and situations when the government has obtained a person’s consent to conduct the query. This requirement also applies to queries of or about “persons reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information.” Section 702’s targeting requirements already proscribe collecting on non-U.S. persons located in the United States under this authority. The bill would effectively shield these non-U.S. persons from queries as well as absent a probable cause court order.

Senior officials have opposed warrant requirement proposals because of the significant difficulty and operational delays the government would likely encounter while trying to satisfy a probable cause showing. Queries are early investigative steps that the government takes to understand the nature of an emergency or threat and whether a person is a victim or a co-conspirator. This information would help trigger one of the bill’s exceptions or build the case for a probable cause warrant, but it could be difficult to discern without running the query in the first instance, risking a cyclical dilemma that would deprive the intelligence community of valuable time or insight.

The bill also prohibits the government from using Section 702 information outside of certain types of national security-related investigations and prosecutions. This restriction may apply, for example, if the government incidentally discovered an individual had committed a serious crime through its Section 702 collection on a terrorist target. That information likely could not be used during an investigation or prosecution of that suspect. This separation of foreign intelligence and law enforcement purposes will appeal to civil liberties concerns, although it also reintroduces some aspects of the “wall” that contributed to intelligence failures ahead of 9/11. 

The bill’s FISC provisions would expand the number of traditional FISA cases that will require an amicus participation before the FISC, empower these amici with authority to seek higher review of FISC decisions, and mandate greater access to information for amici. These measures mirror the Lee-Leahy Amendment, which almost became law several years ago. 

Similarly, the constraints on government data purchases incorporate the ideas raised in a previous piece of legislation known as the The Fourth Amendment Is Not For Sale Act, which would prohibit law enforcement and intelligence entities from purchasing certain kinds of data  without a court order.

The Procedural Politics of 702

It’s somewhat unusual in the contemporary Congress for two separate committees to generate two fully formed, competing proposals on the same issue—especially one as high profile as Section 702. Power in today’s Congress is generally quite centralized in the hands of party leaders, who often direct one committee to take the lead on a measure or, when an issue cuts across the jurisdictions of multiple committees, broker a compromise package behind closed doors.

In addition to this broader trend in legislative deal-making, this year’s Section 702 debate is also occurring amid a set of dynamics within the House Republican Conference that present their own challenges for progress on legislation. When Rep. Kevin McCarthy (R-Calif.) was shoring up support for his bid to become Speaker of the House in January 2023, he made a series of promises to dissident members of his party to open up the legislative process and provide more opportunities for committees to write bills. McCarthy himself was ousted in October, but Speaker of the House Mike Johnson (R-La.) has inherited the challenge of dealing with these demands.

Johnson has also inherited a set of unusual coalition politics on Section 702. Surveillance authorities have long drawn opposition from left-leaning members of Congress with civil liberties concerns; they’ve been joined by a group of right-wing legislators, such as Sen. Rand Paul (R-Ky.), who oppose the current version of Section 702 on similar grounds. This year, these skeptics are joined by another faction of Republicans: hardliners who have grown critical of the FBI and intelligence operations more generally since the 2016 presidential election. The resulting “ends against the middle” coalition includes a range of legislators who don’t usually agree with each other on policy; the signatories to this letter, arguing against the inclusion of a temporary extension of Section 702 in the NDAA, for example, include members of both the House Freedom Caucus and the House Progressive Caucus.

This constellation of circumstances leaves House leadership with a narrow political needle to thread, and it appears they may turn to a procedural solution to do so. Reports indicate that they will use a little-used but not unprecedented procedure, known as “queen of the hill,” to bring both the Judiciary Committee and the Intelligence Committee versions to the floor. Under this approach, both measures would be voted on, and the one that clears the simple majority threshold with the most votes is the one that rules the day. 

Why use this process? “Queen of the hill” rules are rare in large part because House floor outcomes, with centralized party control and norms of strong party discipline on procedural votes, have become more predictable over time. But here, the relatively unusual existence of two fully formed committee bills provides the necessary substantive basis for considering alternative proposals, and the equally unconventional political coalitions offer a reason to think that giving different groups a chance to have their say might help drive the House to an outcome. 

Unconventional procedures are not, however, a magic wand for resolving substantive policy disagreements. Even if the process produces a legislative winner in the House this week, more hurdles—including eventual compromise with the Senate—remain.