The House Judiciary Committee’s 702 reauthorization would be reauthorization in name only. It’s a repeal of one of the nation’s key intelligence authorities.
In this article, by contrast, I wish to slam a dyspeptic fist on the table a bit about one of the two bills—to wit, the House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act.
While their bill would reauthorize 702 in some a formal sense, it amounts to an effective repeal of its functional utility—at least to the extent that a major part of the purpose of the statute is to allow the intelligence community to find out whom intelligence targets overseas are contacting domestically.
Here are some of the most damaging provisions:
- The bill would generally prohibit Section 702 collection against overseas intelligence targets like spies, terrorists, and foreign government officials if “a significant purpose” of the collection is to obtain communications between the targets and any U.S. persons. You read that right. The bill—absent an emergency—would prohibit targeting legitimate foreign intelligence actors overseas who are not U.S. nationals to see if they are talking to U.S. persons. Want to check whether Hamas’s leadership is talking to pro-Hamas activists here? Not under this law.
- Perhaps most bizarrely, the bill would bar the intelligence community from buying certain information about U.S. persons from data brokers that is readily and lawfully purchasable by foreign intelligence services, news organizations, and advertising entities. One might term this unilateral disarmament, since it does exactly nothing to protect the privacy of Americans, whose data is still available for purchase by anyone except their own government (See Sections 18 – 21).
I could go on; the bill has many other problems. It gums up non-702 FISA proceedings with amicus procedures, for example, and in what I can only assume was a drafting error, it actually appears even to require warrants for queries involving non-U.S. person intelligence targets overseas under some circumstances.
But the broad point is that this is not a reauthorization. It is a functional repeal of 702 as an authority intended to enable the intelligence community to examine the so-called “seam” between overseas intelligence targets and the people they contact in the homeland.
This bill is something different, something revolutionary—and frankly a bit crazy in a world in which all sorts of bad actors are busily bad acting against the United States.