The Lawfare Podcast: FISA 702 Passes the House

[Introduction]

Preston Marquis: In the FBI's case, there used to be, or I guess there still is until this bill is signed into law, there is an additional provision that if the FBI believes that, that the query will produce evidence of a crime, that the query could also be run. And so the base bill essentially lops off the second half of that standard, where the FBI can no longer run a query solely to produce evidence of a crime.

Benjamin Wittes: I'm Benjamin Wittes, and this is the Lawfare Podcast, April 16, 2024. Friday morning, the House of Representatives suddenly, after failing to do so earlier in the week, took up the reauthorization of FISA 702, considered a bunch of amendments, one of them failed on a tie vote, and then proceeded to pass reauthorization of 702. Immediately after the votes, we convened, in the virtual jungle studio, Lawfare Senior Editor Stephanie Pell, Lawfare Student Contributor Preston Marquis, and Lawfare Senior Editor Molly Reynolds to talk it all through.

We talked about how the center beat the coalition of the left and right on the key question of warrant requirements for U.S. person queries. We talked about whether the civil liberties community gained anything in this protracted process, or whether the administration just kicked its butt. We talked about what happens now as the bill goes back to the senate, and we talked about all the little details that went into this bill.

It's the Lawfare Podcast, April 16: FISA 702 Passes the House.

[Main Podcast]

All right, Molly, get us started. What the heck just happened on the floor of the House of Representatives?

Molly Reynolds: We are, I just want everyone to know, like, really cutting it close here. Literally minutes ago the House approved a reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. They did that after considering a number of amendments to the version of the bill that they brought to the floor today, we can, and I'm sure we will, talk through kind of both what is in that base bill, what, what approach is the one that eventually ruled the day.

We can also talk through the individual amendments. But this was their second try this week at getting this done, not to mention the fact that there had been earlier tries in this Congress. There was initially an attempt to bring this to the floor earlier this week that failed. They did not, Republicans could not muster the votes for the rule, which is to say they could not muster the votes on the procedural vote that would set the terms for debate and outline which amendments could be offered. That failed earlier in the week, one in a series of failures by Republicans going back six to nine months to be able to bring things to the floor that are important to their party leadership.

But then-- and we can talk about sort of the developments between Tuesday, Wednesday and this morning-- this morning we woke up, got started, certainly for the House of Representatives bright and early around 8:30 this morning. They successfully cleared that first procedural vote and then proceeded to have debate on six amendments and then bring the final version to the floor for passage and now everyone is rushing for their airplanes to go home for the weekend.

Benjamin Wittes: So there is so much packed into that 2 minute and 17 second answer that we are going to spend the next hour unpacking it. Preston, give us a sense of what the base bill was and what the objections to it are and what people wanted added or replaced from it at the highest level of altitude.

Preston Marquis: Certainly. And I think here it's useful just to take a step back. Section 702 of the Foreign Intelligence Surveillance Act as listeners who've been following this issue may recall is a key provision of FISA that allows the government to conduct targeted surveillance of foreign persons located abroad with the assistance of electronic communication service providers.

Benjamin Wittes: And just to be clear, Preston, does it allow for spying on political campaigns?

Preston Marquis: No.

Benjamin Wittes: Does it allow for specific targeting of conservatives?

Preston Marquis: It does not.

Benjamin Wittes: And is it a key tool in the use of the oppression of the MAGA movement?

Preston Marquis: It is not.

Benjamin Wittes: Okay. On, on, go on, man.

Preston Marquis: Sure, yes. So, but, but all of those things come into play and, and some of the, in some of the discourse around this issue, but they aren't necessarily tied to stuff to the Section 702, which is the provision that is set to expire. A lot of the other, a lot of some of these other complaints around the use of FISA, in particular, the allegations of using it to target certain political campaigns actually arose from a separate issue related to the FBI's previous counterintelligence investigation which relied on a separate authority under what is known as traditional FISA or FISA Title 1, where the, the FBI used information to get a probable cause warrant. So that's a separate bucket of issues, but I'm, I'm sure we'll come to that.

But just returning to Section 702 for a second, since that was the sort of cause for urgency here and what stimulated a lot of the, the proposals. So the, the base bill, which is what just passed in the House of Representatives. I would, I would sort of bucket what the base bill does in sort of three major categories. First relating to Section 702, the base bill limits the numbers of people who can authorize queries of, U.S. person queries. And, again, if, if listeners will recall, a lot of the controversy around Section 702 stemmed from the revelation a couple of years ago that the FBI had made an astoundingly high number of non-compliant queries.

So, again, just some basics on Section 702. The, the government can't use Section 702 to target U.S. persons, it targets non-U.S. persons reasonably believed to be located abroad. But just based on how modern communications work, you know, those non-U.S. persons may sometimes be in touch with U.S. persons. And so the question here comes down to how can the government run queries of lawfully collected information against some of this incidentally collected communications that sometimes involve U.S. persons?

What we learned a few years ago was that the FBI's procedures for running those U.S. person queries suffered from a few different errors leading to, I think, what the Foreign Intelligence Surveillance Court noted was close to 280,000 non-compliant queries, non-compliant searches of U.S. persons. And so what the base bill does is it tries to target and reform how U.S. person queries are conducted and it does so in a few different ways. First it, it limits the number of individuals at the FBI who have the ability to authorize these searches. And I believe it requires preapproval from an FBI attorney or from an FBI supervisor before U.S. person queries may be run in the first instance. What I would also say is that it also codifies a lot of the remedial measures that the FBI has taken to try to reduce, if not eliminate completely, the non-compliant queries or some of the root causes that drove that number to be so high.

And I won't spend too much time on the remedial measures because they can get into some very technical details, but, but just as an example, it placed the remedial measures have placed additional limitations on what are known as batch job queries, which are basically when a batch job query might might involve trying to run a large number of U.S. person queries almost simultaneously. The FBI has sought to limit those on its own accord and the base bill essentially codifies those and other remedial measures.

And then the other thing I'd offer just on the Section 702 reform is that the base bill eliminates the FBI's authority to conduct U.S. person queries solely in an effort to, to find evidence of a crime. And again, thinking back to the purpose of Section 702 as a foreign intelligence tool, as part of the query standard, when a government official or government agent is seeking to query Section 702, it has to reasonably believe that it, it will generate foreign intelligence information.

In the FBI's case, there used to be, or I guess that still is until this bill is signed into law, there is an additional provision that if the FBI believes that, that the query will, will produce evidence of a crime, that the query could also be run. And so the base bill essentially lops off the second half of that standard, where the FBI can no longer run a query solely to produce evidence of a crime. So that's the 702, that's the 702 side.

Benjamin Wittes: So. Stephanie, it's fair to say that the privacy community, the civil liberties community, a lot of liberal Democrats, and a lot of MAGA conservatives wanted much more than was in the base bill. And the bill that passed the House Judiciary Committee, as opposed to the House Intelligence Committee, which was essentially the base bill, did a lot more. And a lot of today's events were to see how much of that you could get injected into the base bill. So, how did the coalition of left and civil liberties and far right do in their effort to make this bill much less palatable to the administration, much more protective of Americans privacy and much less convenient for the FBI to use on a day-to-day basis?

Stephanie Pell: I think it's fair to say that they got almost nothing in the base bill and then the ability to get some of those additional protections was left to the amendment process that we just saw unfold. Let me start with, I think, what has been the most significant divisive aspect of the 702 debate. And that is whether, when the government wants to query 702 databases for U.S. person information, whether they should have to get a warrant to run that query. And again, this is information that is already in the government's possession. But as Preston noted, the 702 targets are not U.S. persons, but the FBI can come back and do a query for information about U.S. persons.

Benjamin Wittes: In other words, just an example to make this tangible: Vladimir Putin is talking to Xi Jinping and we intercept it because they're using Facebook Messenger so it runs through the United States and they're talking about Molly Reynolds and, so you got Molly Reynolds data wrapped up in there. Or, you know, you've got the, it could be about Molly Reynolds or they could, you know, Putin could say to Xi Jinping, both of them legitimate FISA targets, I don't know the answer to this question. Let's ask Molly Reynolds. And so they add Molly Reynolds to, cause they, they want to know about congressional procedure. So they, they include Molly Reynolds in the conversation. She is not a legitimate FISA target, but she's now in one of these three-way conversations with people that we all have a million of text exchanges or multiple threads, and two of the, one of the people, or in this case, two are legitimate FISA targets, so a whole lot of Molly Reynolds data gets swept up. You don't need a warrant under this bill to, to query for that data.

Stephanie Pell: You do not need a warrant to query. Like if you're looking for Molly's email address, or telephone number, or what have you.

Benjamin Wittes: There are more convenient ways to get it, by the way. The Brookings website, for example.

Stephanie Pell: You know, you can run a query for Molly Reynolds, again, even under current procedures, let's be clear, running that query, the FBI, putting aside what just happened, the FBI, there would have to be reasonably likely that it would query would return foreign intelligence information or evidence of a crime. Whether Molly's communications with these two foreign leaders who are, you know, clearly would, would be appropriate FISA targets is foreign intelligence information, we could debate that. But let's say the FBI thought it was under current, under the current rules, they could run it. Again, what the civil liberties and conservative MAGA sort of coalition wanted is to require a warrant to do that.

And, and this, I'll try not to get into the weeds too much on this. But, the probable cause question, like how hard it is, for the FBI to meet the warrant standard, you really need to ask probable cause of what. In this case, if this amendment had to be adopted, the probable cause would have turned on whether the FBI could show that Molly herself was an agent of a foreign power or whether--

Benjamin Wittes: We have no evidence of that by the way.

Stephanie Pell: We have, we have no evidence of that. I mean, that's what let's be clear, that's what a traditional FISA warrant would require. So if this amendment had passed, either the FBI would have had to show that she was an agent of a foreign power. I'm not going to say, like, she's not a foreign power, so they would have had to show she's an agent of a foreign power. Or they would have had to show that under a traditional Rule 41 kind of criminal warrant, that they would essentially find probable cause to believe that the query was, would result in evidence of a crime. And, and again, as Preston and others have pointed out, this is a foreign intelligence collection authority. So for the most part, you'd be looking at whether Molly was an agent of a foreign power, which is a very high standard.

Benjamin Wittes: Alright, so, so I wanna, I wanna zoom out for a second here. This is a, there were a lot of amendments today. This one is a really big deal because at the end of the day, the big difference between the forces that wanted the cleanest possible reauthorization and the forces who wanted radical reform was this warrant requirement question. It was always going to be a sticking point. It has been the principle sticking point. Government one, privacy community zero on this, right? It's, it's a pretty binary win for the government. Do you agree?

Stephanie Pell: Yeah, I, I have to agree on that. It was very close, if Molly will correct me if I'm wrong, it was like 212 to 212.

Molly Reynolds: It was, it was as close as it could be. It was a tie vote on the amendment in the House. A tie vote fails and because this was an amendment to the, to the bill so if we like rewind to earlier in this whole episode, there was a point at which, you know, the, the proponents of this proposal were working really hard to get it into the base text of the bill because then it would be sort of harder to remove it. But yes, they brought it to the floor, tied a 212-212 the sort of, if you were watching or watching the covered, sort of people posting about this on social media as it went, you know, there was a, there were repeated efforts to close the vote and then objections to keep it open.

The way it sort of works in the House is that there's a, there's a clock on a vote and when the time expires, that doesn't mean you can't keep holding the vote open, but it does mean that the presiding officer can attempt to close the vote, but is not supposed to if there are still people trying to actively vote. And so lots of, I'm sure in the coming several days, we'll get lots of sort of insider takes on, you know, were there still people trying to vote? Did Republican leadership close the vote quickly or as quickly as they could when it was tied at 212-212 to keep this provision out of the bill? But yes, it was a you know, this Congress has seen its fair share of high drama moments on the House floor, but this is definitely sort of, in that category in the, in the universe of things we don't usually see. We don't usually see things make it all the way to a tie.

Benjamin Wittes: So I want to detour a tiny bit from FISA 702 to ask you about this, because this is actually the second tie vote, things that have failed because of a tie vote in a very short period of time. The last time, as I recall, they wheeled in an extra member to vote to, to generate the tie. What's going on with the tie votes on the floor, on the floor of the House?

Molly Reynolds: It is a symptom of a set of broader dynamics that involve both the size of the House Republican majority at present, which is very narrow. And so Republicans, when they are trying to do things on a party or a party line or largely party line basis, which this was not, and we'll talk about that I'm sure in a second. But in general, because the House Republican majority is so narrow, it's very difficult for them to marshal all of their votes even on a routine day, there are absences for all kinds of reasons. And so when you, when that's a, when you have such a narrow majority, that can be a real a real challenge for you.

And then the second is that within that very narrow majority, there's also there are huge divisions on any number of things among House Republicans. The warrant requirements, specifically the broader 702 debate more generally are high on that list. And in this case, it's not just that there are divisions within the Republican Party, it's also that there are divisions within the Democratic caucus. And so, you on some of the other places where it's been consequential for Republicans that their majority is so narrow, they've sort of been quote unquote saved by Democrats. So they've lost Republican votes for something. But enough Democratic votes have, have come along and, and saved, saved the day, if you will, on things like keeping the government open.

Here the fault lines on the issue itself exist in both parties, and so you sort of have you have this kind of strange bedfellows coalition of civil liberties minded Democrats and Republicans, probably a small number of whom are of the kind of true civil libertarian faction a much larger number in the anti-702 camp are, you know, people who have, believe that this is a tool that the FBI is using to spy on Americans, so on and so forth.

Benjamin Wittes: I mean, it used to be just Democrats and Justin Amash.

Molly Reynolds: Basically, Democrats and sort of Justin Amash and a couple of his sort of, allied, again, like true civil libertarian minded Republicans. And then, and I think that this is the evolution or the sort of growth of a faction in the congressional Republican party who is against reauthorization without significant changes. That growth is the biggest difference between this fight over 702 and previous fights over 702, of which there have been several.

Benjamin Wittes: But they get, they get more intense every time as this faction has grown.

Preston Marquis: To Molly's point, what has also made this particular fight, or dialogue, debate, however you want to describe it, more contentious involves, I think a little bit of, of how you were sort of teasing out your questions earlier and related to, is this a tool that is used to spy on the, the MAGA movement or anything else? It relates to Donald Trump's tweet a couple of days ago to kill FISA. They used it to spy on me, et cetera. And so, and my point here is that, you know, 702 has actually become controversy around a separate part of FISA related to, again, how do you use a Title I, the probable cause system of, of FISA that Stephanie laid out in a, in a responsible way.

And I would just point out that the, that the base bill targets that as well. And in terms of trying to implement some reforms. Listeners may recall that, you know, if the name Carter Page is familiar, there were issues in how the FBI pursued its traditional Title, it's Title One FISA application around Carter Page, which is sort of been swept up into a broader controversy around spying on the Trump campaign. And, and the base bill tries to essentially reduce, if not eliminate, you know, further instances of errors in the traditional FISA application process as well by prohibiting, for example, the undisclosed use of, you know, politically derived information or media reporting in FISA applications and a few other steps to try to boost the accuracy of FISA applications in the sort of traditional or probable cause sense as well. So all that's to say is that there were sort of a different bucket of issues this go around, that sort of became linked to Section 702 and the base bill here also tried to target those other issues with a series of reforms as well.

Benjamin Wittes: But it's fair to say, or isn't it, I think it is, that it's much harder for the MAGA wing to target Title I FISA because it doesn't come up for reauthorization every five years. It's permanently authorized. And so 702, by contrast, has this five year sunset, that every five years we have to go through this mortification of the flesh and when they do that, because the word FISA is attached to it, it's a little bit like, you know, butterflies to a light, except that they're flying around the wrong light, because the Title I FISA light actually isn't turned on because it's not subject to this five year clock.

Molly Reynolds: Can I say one thing?

Benjamin Wittes: Yep.

Molly Reynolds: Which is that you just used you just used five years. One really important thing to know about this bill that was moving today is that it's only for two years. So, when I mentioned at the top, you guys can't see Matt's face right now, you mentioned at the top that, or we mentioned at the top that there this was the second attempt this week to bring this through the House.

And one of the principal things that changed between attempt number one and attempt number two was this concession to some of the kind of MAGA type opponents that this would be for only two years rather than five with the possible logic that if it expires in two years and Donald Trump is reelected president and Republicans control the Congress, you might be able to get a different kind of bill through than you were able to under the current political configuration.

Benjamin Wittes: Yeah, that's a really, actually very significant victory, where we were counting losses for the privacy community, but that's a significant win.

Molly Reynolds: So I should also say that that's where this stands right now. This obviously, and I'm sure we'll get to this at the end, needs to go through the Senate. And so, you know, there's always this question of is one chamber trying to jam the other chamber and maybe this is the House trying to jam the Senate. Maybe the Senate comes back and says, no, we really don't want to do this again in two years. We'll see what happens. But it is a pretty, as you put it, a pretty significant change in the, even aside from kind of the really helpful rundown that Stephanie and Preston gave earlier of the substance of the base bill.

Benjamin Wittes: Yeah, so Stephanie, what else was at issue today? What were some of the other amendments and did the privacy community win anything?

Stephanie Pell: So, Ben, let me, in answering that question, let me, let me start with your description that, you know, sometimes 702 reauthorization brings in a lot of other things.

Benjamin Wittes: Yeah, it's a stalking horse for everything people don't like with the word FISA attached to it.

Stephanie Pell: Right, or, or other things as well. And, and one of the things that was in House Judiciary, the original House Judiciary bill was this provision that was adopted from something called the Fourth Amendment Is Not For Sale Act.

Benjamin Wittes: Oh yeah, is the Fourth Amendment for sale in the final bill?

Stephanie Pell: No, it never, it never got there and this was-

Benjamin Wittes: Oh, so it's still for sale in other words. We can still buy the Fourth Amendment.

Stephanie Pell: You can buy things that the Fourth Amendment would otherwise require law enforcement to get through a compelled order, so.

Benjamin Wittes: Right, so before my rude interruption, which was intended to be comic but was actually disruptive you were about to explain what the Fourth Amendment Is Not For Sale is, and for those for whom this was very confusing. Why don't you do what you were going to do before I so rudely interrupted you?

Stephanie Pell: So, one of the things that has really changed in terms of law enforcement, intelligence community, even foreign adversary access to data, is that there is now a lot of data that is held by data brokers that can be location data, for example, is the thing that always gets the attention. And there's this statute called the Electronic Communications Privacy Act, which, for the most part, governs law enforcement access to certain kinds of electronic communications data.

But ECPA, only governs or limits certain kinds of entities, so think telecommunication providers, the big platforms. What it doesn't do is if that metadata, which I'll use as an umbrella term, is, you know, sold to a data broker, then law enforcement and, and a host of other entities can go and buy that data. And so what the Fourth Amendment Is Not For Sale Act, which, you know, a large coalition wanted in, in the base FISA bill, what it does is essentially say law enforcement, intelligence community, if you would otherwise be required to get some kind of court order for this data, you can't get that data by buying it from data brokers.

And, look, you know, this is an instance where a change in technology and, and the ecosystem of, of data, you know, makes us have to reconsider ,are the protections that currently exist in the world in the law sufficient, not only to prevent law enforcement, but foreign adversaries as well. And there have been a lot of other efforts. We've, we've seen a new executive order come out. We've seen other legislation coming out of the House that tries to prevent our foreign adversaries from buying this data as well, as well. But that didn't make it in. That, as Molly referenced, is going to be getting presumably a separate vote next week.

Molly Reynolds: So I mentioned before, if we're looking at sort of what changed between the middle of the week and the end of the week to unlock this getting through the House, one of the things was the change in how long the reauthorization lasts. The other involves this proposal that Stephanie was just talking about.

So initially, the folks who, the proponents of the Fourth Amendment Is Not For Sale Act wanted the opportunity to offer that as, well, most of all they wanted it in the base bill. Once they lost that fight, they wanted the opportunity to offer it as an amendment in the debate that ultimately happened today. They lost on that. But the initial offer to them from House Republican leadership was to let them have a vote, a separate vote on the Fourth Amendment is Not for Sale Act, but under a set of procedures that would have meant it would have needed two-thirds to pass the House, which is unlikely to happen. So, one additional concession that they got over the course of the week was, okay, we will give you a separate vote on this proposal and we'll do it under the regular procedures in the House such that it would only need a majority to pass. That's projected to happen next week. The Senate obviously could ignore that. The proposal has Senate proponents so who knows whether this will become a headache for Chuck Schumer in any way. But that's, again, if we're trying to sort of figure out, how did we get from Wednesday to Friday that's another key dynamic.

Benjamin Wittes: Super interesting. Okay, so the Fourth Amendment is still for sale. Get your Fourth Amendments before the House votes next week to make them illegal. Preston? What else happened? What other amendments were there adopted, discussed, rejected? You know, what, what, what else did we see happen?

Preston Marquis: Certainly. So we've spent, I think, a lot of time talking about the, the, the first amendment, which failed, related to the warrant requirements. And, and Stephanie, earlier in the episode, teased out some of the implications of what would have happened had that passed. But that was only one of six amendments that the, the rule allowed to, to come before the, the full House and my colleagues will keep me honest here cause it, you know, the vote just happened a little while ago, but it seemed like the other, the other five amendments passed. And I'll just give just a very brief rundown, and then if folks want to sort of tug on some other threads, we can, we can dive deeper. But one amendment from Representative Chip Roy, which passed now requires quarterly FBI reports on U.S. person queries. This same amendment also provides Aacess to FISC proceedings to congressional leadership. So it, it, it enables the, the leaders of the, of certain committees and, and leadership in the House to actually attend FISC proceedings.

Benjamin Wittes: And just in case what Mike Johnson is really missing from his life for excitement is, like, to hang out in a SCIF and, and, watch oral arguments.

Preston Marquis: Well, you know, for people like us, that might actually be interesting, but, but yes.

Benjamin Wittes: I just kind of can't imagine it's like, you know, that that's what Hakeem Jeffries wants to do.

Preston Marquis: Right. So, so that amendment passed and made it into the final passage. The second, or another amendment that, that passed, and this was spoken about pretty passionately by Representative Sheila Jackson Lee of Texas, was the prohibition on the resumption of what is known as a bounce collection. And this is a little in the weeds, so we may not spend that much time on it. It's a practice it's a, it's a, it's a collection practice that the NSA itself voluntarily ended a few years ago. And so, this provides a statutory bar on whether the NSA could, could resume it in the future. And just in a sentence, a bounced collection is was a, was a sweeping collections method that was less about, was about communications about a target as opposed to communications, either to or from a target. And, and as a result of sort of the more tangential link, it had a more sweeping more sweeping sort of ambit. But again, the NSA voluntarily ended that practice, but part of what came out of this vote today was sort of a final prohibition on ever going back to a bounce collection.

A couple other provisions that Stephanie or Molly may want to expand on. These were a little bit more in the sort of expansive category as they relate to FISA Section 702. We had one from Representative Crenshaw which I believe expands the definition of foreign intelligence to include counter narcotics targets, and, and I, I, I believe the, the intent behind this was to enable a more direct linkage between using FISA and Section 702 surveillance tools to target narcotics traffickers and producers overseas, in particular related to the fentanyl crisis.

That's, that's one that passed, that sort of expands how Section 702 may be applied. Another sort of amendment that, that might expand Section 702's use was an amendment from Representative Waltz which would enable the Department of Justice to sort of apply Section 702 query procedures to enable, against the vetting of all non-U.S. persons who are being processed for travel to the United States. So, so individuals located abroad who are visa applicants, there's a, there's a whole vetting apparatus that, that attempts to sort of screen and, and, and understand sort of who those people are. And, and this amendment would sort of put the government on a path to providing access to Section 702 information and vetting some of those individuals. There are some nuances we can get into there, but that at a broad level, that's the, the, the Waltz Amendment, which passed.

And then the final amendment that passed, which exists in this category of sort of expanding the definition or sort of expanding the, the ambit of Section 702 is an amendment from Representatives Turner and Himes. It's I think colloquially known as the Turner-Himes Amendment, which updates the definition of, of an electronic communication service provider as it relates to, to FISA. So I, just for, that may sound very jargony if you're not in the weeds of this as, as many of us tend to be. But I think what's, what's critical is that the law enables, if we're thinking about Section 702, it enables the government to go to an electronic communications service provider and to compel their assistance to, to sort of, require them to hand over the records of individuals who are being targeted under Section 702. And so the purpose of, of this amendment is to expand the definition of who would have to provide that assistance to the government when, when the government goes and is, is, and is attempting to execute the, the collection under seven, under 702.

Benjamin Wittes: And just to be clear, my recollection is that this provision, it sparked a little mini controversies a couple months ago, because it showed up in the base bill out of the intelligence committee, and a lot of people kind of freaked out about it because it seemed to wildly expand the list of covered entities. And then the, you know, the response to that was wait a second, this is just something that's designed to respond to something that the FISC had said that we're not allowed but there was a, it was classified and redacted. So you kind of couldn't tell what it was, how did they resolve that dispute. They seem to think they were doing something narrow. A lot of people thought they were doing something broad. Does the language of the final provision resolve that? Or is this just another situation where the civil liberties community lost?

Preston Marquis: Well, and I'll invite Stephanie into this, because I know she's, she's looked into it as well. My understanding is that to address some of the concerns, the proposed amendment explicitly included certain types of entities, like hotels, coffee shops, and libraries.

I, I think in response to what you're discussing, Ben, that as originally construed, sort of the expanded definition of a, of an ECSP, electronic communication service provider, could be quite sweeping. And so, it, it looked like the final version of the bill tried to narrow that a little bit, but whether that actually meets the concerns of privacy advocates I, I, I'm not sure if it will.

Stephanie Pell: So I'll just add, I, I think you meant exclude, not include certain types of, of entities.

Preston Marquis: That's right. Excluding coffee shops, hotels, libraries. Pardon if that was unclear.

Stephanie Pell: So, it was an attempt to narrow, I think the, the privacy community is still going to be very much concerned about this because basically what has happened is it, it used to be, well, it's not the law yet, to be clear, but when the government with its certifications was going to ECPSPs, it was entities that had direct access to the communication streams. Now, if this kind of language got adopted in a, in a final law, the government would be permitted to go to entities who have access to equipment upon which those communications are transmitted remotely or stored. And that people argued, you know, just opened up the floodgates and, and brought in employees and, you know, all sorts of people that you would never think about would be served with some kind of order pursuant to FISA certification. So again, there are, there are certain kinds of businesses that were excluded, but this is still arguably quite an expansion. And I, and I think as, you know, the debate now shifts over to what the Senate is going to do, the, the privacy is community is, is going to fight hard against this amendment.

Benjamin Wittes: Yeah. And just to be clear, before we move on to the Senate, it's still not clear what the problem that gave rise to this provision is, or is it?

Stephanie Pell: Like, I don't feel comfortable saying yes, I know what the problem is, because I'm reading things third hand. I had heard at one point it involved a cloud provider, but what I think we can reasonably say is that the government tried to get the assistance of a particular kind of entity, and the FISA court said no, that entity, that kind of entity doesn't fall into the definition of an ECSP.

Benjamin Wittes: And specifically said, if you want to deal with that kind of entity, you got to go to Congress.

Stephanie Pell: Exactly. And so, this is potentially Congress dealing with that, that seems, that seems likely, but the, the issue is still on the table, you know, are you really just correcting a problem very narrowly, or have you just significantly expanded the kind of entities and businesses that could be required for assistance because they're now electronic communication service providers?

Benjamin Wittes: All right, Molly, only in the state of Nebraska does passage of one House of Congress get you to a law. So, we gotta talk a little bit about the Senate. The Senate has also had a parallel struggle between, also bipartisan, also politically unpredictable who's on which side that has tracked the House process. Are they going to just take up this bill and get 60 votes for it and pass it into law? Or should we expect to see the Senate now do its own work and have to go to a conference committee?

Molly Reynolds: So, first thing I want to say is that the, at the very end of the proceedings in the House today after the bill had gotten had passed on a large majority, there was sort of some slight procedural maneuvering by some of the Republicans in the anti-reauthorization camp. The upshot of which is that there is a one motion to table that the House will have to vote on next week before the bill can actually go over to the Senate. There's no reason to think that the pro-bill forces won't have the votes to table that motion and send it over to the Senate, but it does mean that it can't go to the Senate today it can only go after this procedural, this last sort of procedural vote happens next week. So that's just one thing to keep in mind.

More generally I have not been following the ins and outs of where things are in the Senate as closely as in the House. The, while yes 60 votes is the, the threshold in the Senate, the Senate does not have the same challenge that Mike Johnson was facing here in terms of having to get the bill to the floor and probably needing a majority, and ultimately needing a majority from within his own party to do that. Schumer can just build the coalition that he needs from Democrats and Republicans and I suspect that there are 60 votes to do that. And then I'll just note that the, the current expiration date is a week from today, next Friday. So, they'll be under a lot of pressure to get this taken care of next week.

Other people, other than me, can talk about what happens if they blow past the April 19th deadline. But because one of the, again, one of the big obstacles here was getting this to the floor, dealing with the warrant amendment issue and then once it came up for final passage the, the margin was pretty comfortable in favor. So I suspect that that's sort of what we'll see in the Senate next week

Benjamin Wittes: Preston you've, you've followed the Senate politics of this pretty carefully I'm worried that Molly's optimism about the Senate is premature and that between the civil libertarians of the left and the MAGA conservatives in the Senate and the leadership level, Dick Durbin, Democrats who are very sympathetic to the privacy community on this. I don't know how to count 60 votes for this bill without a significant dollop of amendments to, along the lines of the ones that the House rejected today. Can you get a bill through the Senate without a vote on a warrant requirement?

Preston Marquis: Well, I, I'll say I don't know. And it's just because the, the politics of this issue, as we've discussed, are all over the place. But what I will say is that, is, is to about the, the different camps, the Senate has been interesting because it's, it's attracted a little less attention than, than the House. What we saw in November was basically a setup of this very debate. So, Senator Mark Warner and Senator Marco Rubio, the leaders of the Senate Intelligence Committee, proposed a bill that looks very similar to the base bill that just passed out of the House and that it doesn't contain a warrant requirement.

And it is kore targeted at reforming the Section 702 sort of query process than it is that limiting it or potentially trying to do away with it altogether. So that was one bill and then sort of in a similar time frame, we saw another bill from. Senator Mike Lee and Senator Ron Wyden, which looked very similar to a bill which looked very similar to the bill that was sort of proposed by the House Judiciary Committee and sort of packaged together a lot of the more sweeping reforms from the privacy civil liberties community sort of combined with the sort of far right that that coalition that that Molly was talking about. So we, we did see this dichotomy set up in the Senate pretty early on. The Senate deferred to the House, I think, to sort of move forward on Section 702 reauthorization first. And so we really haven't seen too much in terms of where, where some of these dynamics may play in terms of a pro warrant requirement, you know, no warrant requirement.

What I will say is that to your point about congressional leadership, it, you know, it is interesting, Senator Dick Durbin worked with Senator Mike Lee to put forward an additional bill of a, just under a month ago, you know, it was attempted, there was this discussion that maybe Durbin and Lee could reach compromise in terms of like what a warrant requirement could look like. So their bill, I think, ostensibly was supposed to chart a middle ground, but you know, I think anyone who takes a closer look at that bill will see that a lot of the underlying requirements in that, in that statute were it to be passed would ultimately make it just as difficult for the, the government to run a U.S. person query as it might if, if the warrant requirements would have passed in the House. So, all that's to say is, I agree, it's not really clear at this point, but, but the Senate dynamics are fully primed to come down again on this question of do we have a warrant requirement or do we not?

Stephanie Pell: So, again, it's getting in the weeds just a little bit. The way I look at the Durbin-Lee compromise, compromise bill that was, has also Senator Wyden signed on to. What a big, the biggest difference if we're talking about the warrant requirement is that the, the Durbin bill allows the government to run the query first, without getting a warrant. And if it then wants to access the content of that query, and I, when I say content, I mean content of, of the communications, it can, it can access the metadata, then it has to go and get a warrant. So it, it, it tries, it's sort of borrowing from something that PCLOB did, but the government is still very much against any idea, frankly, that, that they should ever have to get additional court approval to essentially access something that's already been collected lawfully.

Benjamin Wittes: Right. The government has a, a point of principle here, which is that warrants are about the collection and if you've collected something lawfully, you get to use it. And they are terrified of anything that crosses that line, because in the government's view, once you put the camel's nose under that tent, it's just gonna lift its head in a hundred ways.

Stephanie Pell: In fairness, I have to say, though, you know, what the privacy community would say is, but this was never collected with a warrant when otherwise it should have been.

Benjamin Wittes: Right. No, no, I'm, I'm not, I'm not saying that there's no possible answer to that. I'm, I'm, just saying that's the government's great fear.

Molly Reynolds: Two last quick things about the Senate. One is that something that would not surprise me is if in the Senate's consideration of the House bill there is an agreement to vote on an amendment about a warrant requirement, but at a 60 vote threshold. So this is a super common way that the Senate sort of makes its way through issues at this point, which is to say we're going to, a little bit like the House does on a regular basis, negotiate a set of an agreement that stipulates which amendments can be offered and we're going to say that even though we're not going to formally go through all of the cloture filibuster hoops.

We're going to stipulate that this amendment needs to get 60 votes to pass. So I think a real question should hear should be like, do we think a warrant requirement has 60 votes in the senate? Not does a bill without a requirement a warrant requirement have 60 votes in the Senate. And then the other thing I'll say that I think works in favor of this making through the Senate and making it through the Senate in a way that was less predictable in the House is that reauthorization is an enormous priority for the Biden administration and keeping the warrant requirement out of the bill is also an enormous priority.

So you saw reporting this morning on Merrick Garland, on Jake Sullivan, calling House Democrats to try and whip votes to defeat the warrant amendment. And so because Democrats have a majority in the Senate, I think there's also an element, not to say that this is what will make the difference, but there's a partisan team play element that will come into play in a way that we didn't see for House Republicans in the same way.

Benjamin Wittes: We're gonna leave it there. Stephanie Pell, Preston Marquis, Molly Reynolds, thank you all for joining us today.

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