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Isabella Royo
Happy New Year. I'm Isabella Royo, intern at Lawfare, with an episode from the Lawfare archive for January 1, 2026. On November 11, 2025, Lothair published a piece on the looming reauthorization deadline for Section 702 of the Foreign Intelligence Surveillance act, or FISA, a controversial surveillance authority that enables non U.S. citizens to be investigated for foreign intelligence purposes through the compelled assistance of electronic communications service providers. If not reauthorized. Section 702 will expire this April. For today's archive, I chose an episode from April 16, 2024, in which Benjamin Wittes spoke with Stephanie Pell, Molly Reynolds, and Preston Marquis about the contents of the House's reauthorization bill for FISA 702 how moderate lawmakers prevailed on the key question of warrant requirements for U.S. person queries over opposition on the left and the right whether the civil liberties community gained any victories in this process.
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Narrator/Advertiser
END.
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Benjamin Wittes
Ben 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 16th FISA 702 passes the House all right, Molly, get us started. What the heck just happened on the floor of the House of Representatives?
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Molly Reynolds
We are, I just want everyone to know, like really cut nick close here. Literally minutes ago, the House approved 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 amend 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.
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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, certainly.
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Narrator/Advertiser
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 services.
- [06:49]
Benjamin Wittes
And just to be clear, Preston, does it allow for spying on political campaigns?
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Narrator/Advertiser
No.
- [06:57]
Benjamin Wittes
Does it allow for specific targeting of conservatives?
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Narrator/Advertiser
It does not.
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Benjamin Wittes
And is it a key tool in the use of the oppression of the MAGA movement?
- [07:11]
Narrator/Advertiser
It is not.
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Benjamin Wittes
Okay, go on then.
- [07:14]
Narrator/Advertiser
Sure, yes. But all of those things come into play in some of the discourse around this issue, but they aren't necessarily tied to the section 702, which is the provision that is set to expire. 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 FBI used information to get a probable cause warrant. So that's a separate bucket of issues, but 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 proposals. So the base bill, which is what just passed in the House of Representatives, 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 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 government can't use section 702 to target US persons. It targets non US persons reasonably believed to be located abroad. But just based on how modern communications work, you know, those non US persons may sometimes be in touch with US 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 US Persons? What we learned a few years ago was that the FBI's procedures for running those US 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 US 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 limits the number of individuals at the FBI who have the ability to authorize these searches. And I believe it requires pre approval from an FBI attorney or from an FBI supervisor before US person queries may be run in the first instance. What I would also say is 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 just as an example, the remedial measures have placed additional limitations on what are known as batch job queries, which are basically when a batch job query 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 US person queries solely in an effort 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 a government agent is seeking to query section 702, it has to reasonably believe that 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 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. So that's the 702. That's the 702 side.
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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?
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Isabella Royo
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. So let me start with, I think what has been the most significant divisive aspect of the 7702 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 US persons. But the FBI can come back and do a query for information about U.S. persons.
- [14:19]
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, 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 too, because 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 query for that data.
- [15:37]
Isabella Royo
You do not need a warrant to query. Like if you're looking for Molly's email address or telephone number or what have.
- [15:46]
Benjamin Wittes
You, there are more convenient ways to get it. By the way, the Brookings website, for.
- [15:52]
Isabella Royo
Example, 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 with what just happened, the FBI there would have to be reasonably likely that the 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. But let's say the FBI thought it was 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 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.
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Benjamin Wittes
We have no evidence of that, by the way. We have.
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Isabella Royo
We have no. 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 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.
- [18:14]
Benjamin Wittes
All right, so I want to zoom out for a second here. 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 principal sticking point. Government one, privacy community zero on this right. It's. It's a pretty binary win for the government. Do you agree?
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Isabella Royo
Yeah, I have to agree on that. It was very close. If Molly will correct me if I'm wrong. It was like 212.
- [19:04]
Molly Reynolds
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 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 us the floor tied at 212 to 12. The sort of. If you were watching or watching the coverage, 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 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 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 happen, we don't usually see things make it all the way to a tie.
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Benjamin Wittes
So I want to detour a tiny bit from FISA702 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 generate the tie. What's going on with the tie votes on the floor, on the floor of.
- [21:10]
Molly Reynolds
The House, 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 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 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 come along and 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 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, who believe that this is a tool that the FBI is using to spy on Americans, so on and so forth.
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Benjamin Wittes
I mean, it used to be just Democrats and Justin Amash, basically Democrats and.
- [23:15]
Molly Reynolds
Sort of Justin Amash and a couple of his sort of allied, again like true civil libertarian minded Republicans. And then 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.
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Narrator/Advertiser
Right.
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Benjamin Wittes
And they get more intense every time as this faction has grown.
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Narrator/Advertiser
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 how you were sort of teasing out your questions earlier 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, seven or two has actually become embroiled in controversy around a separate part of FISA related to, again, how do you use title one, the probable cause system of FISA that Stephanie laid out in a, in a responsible way. And I would just point out that the base bill targets that as well 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 1 FISA applications around Carter Page, which has sort of been swept up into a broader controversy around spying on the Trump campaign. 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.
- [25:49]
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 1 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 1 FISA light actually isn't turned on because it's not subject to this five year clock.
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Molly Reynolds
Can I say one thing which is that you just used the, 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's. 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.
- [27:44]
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- [30:54]
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.
- [31:03]
Molly Reynolds
Win, 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 evening, aside from kind of the really helpful rundown that Stephanie and Preston gave earlier of the substance of the base bill.
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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?
- [31:49]
Isabella Royo
So, Ben, let me, in answering that question, let me, let me start with your description that sometimes 702 reauthorization brings in a lot of other things.
- [32:01]
Benjamin Wittes
Yeah. It's a stalking horse for everything people don't like with the word FISA attached.
- [32:05]
Molly Reynolds
Right.
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Isabella Royo
Or other things as well. 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.
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Benjamin Wittes
Oh, yeah. Is the Fourth Amendment for sale in the final bill?
- [32:28]
Isabella Royo
No, it never, it never got there. And this was.
- [32:31]
Benjamin Wittes
Oh, so it's still for sale. In other words, we can still buy a Fourth Amendment.
- [32:37]
Isabella Royo
You can buy things that the Fourth Amendment would otherwise require law enforcement to get through a compelled order. So.
- [32:47]
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?
- [33:07]
Isabella Royo
So one of the things that has really changed in terms of law enforcement, intelligence community, even for an adversary access to data is that there is now a lot of data held by data brokers that can be bought. Location data, for example, is the thing that always gets the attention. 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, but ECBA 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 a host of other entities can go and buy that data. And so what the Fourth Amendment Is Not For Sale act, which a large coalition wanted 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, this is an instance where a change in technology and the ecosystem of data makes us have to reconsider. Are the protections that currently exist in, 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 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. But that didn't make it in that, as Molly referenced, is going to be getting presumably a separate vote next week.
- [35:37]
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. 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. 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.
- [37:07]
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?
- [37:29]
Narrator/Advertiser
Certainly. So we've Spent, I think, a lot of time talking about the First Amendment, which failed, related to the warrant requirements. 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 rule allowed to come before the full House. And my colleagues will keep me honest here because the vote just happened a little while ago, but it seemed like 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 dive deeper. But one amendment from Representative Chip Roy, which passed, now requires quarterly FBI reports on US Person queries. This same amendment also provides access to Fisk proceedings to Congressional leadership. So it enables the leaders of certain committees and leadership in the House to actually attend Fisk proceedings, just in case.
- [38:37]
Benjamin Wittes
What Mike Johnson is really missing from his life for excitement is like to hang out in a skiff and watch oral arguments.
- [38:49]
Narrator/Advertiser
Well, you know, for people like us, that might actually be interesting, but I.
- [38:53]
Benjamin Wittes
Just can't imagine it's like, you know, that that's what Hakeem Jeffries wants to do.
- [38:59]
Narrator/Advertiser
Right. So that amendment passed and made it into the final passage. The second or another amendment 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 collection practice that the NSA itself voluntarily ended a few years ago. And so this provides a statutory bar on whether the NSA could resume it in the future. And just in a sentence, it's a balance. Collection 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 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 I believe 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 one that passed. That sort of expands how Section 702 may be applied. Another sort of amendment that might expand section702'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 US Persons who are being processed for travel to the United States. So individuals located abroad who are visa applicants, there's a whole vetting apparatus that attempts to sort of screen and understand sort of who those people are. 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 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 ambit of section 702, is an amendment from Representative Turner and Himes. It's, I think, colloquially known as the Turner Himes Amendment, which updates the definition of an electronic communication service provider as it relates to fisa. So just for that may sound very jargony if you're not in the weeds of this, as many of us tend to be. But I think what's critical is that the law enables, if we're thinking about section 702, it enables the government to go to an electronic communication service provider and to compel their assistance to sort of require them to hand over the records of individuals who are being targeted under section 702. And so the purpose 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 and is attempting to execute the collection under seven, under 702.
- [43:02]
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 FISK 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 seemed 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?
- [44:06]
Narrator/Advertiser
Well, and I'll invite Stephanie into this because I know 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 think, in response to what you're discussing, Ben, that as originally construed, sort of the expanded definition of an ECSP electronic Communication Service provider could be quite sweeping. And so 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'm not sure if it will.
- [44:44]
Isabella Royo
So I'll just add, I think you meant exclude, not include certain types of entities.
- [44:51]
Narrator/Advertiser
That's right. Excluding coffee shops, hotels, libraries. Pardon if that was unclear.
- [44:57]
Isabella Royo
So it was an attempt to narrow. I think the privacy community is still going to be very much concerned about this because basically what has happened is 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 an 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 or stored. And that, people argued, just opened up the floodgates and brought in employees and all sorts of people that you would never think about would be served with some kind of order pursuant to a FISA certification. So again, there are certain kinds of businesses that were excluded, but this is still arguably quite an expansion. And I think as the debate now shifts over to what the Senate is going to do, the privacy community is going to fight hard against this amendment.
- [46:31]
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.
- [46:41]
Isabella Royo
It 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. And specific.
- [47:15]
Benjamin Wittes
And specifically said, if you want to deal with that kind of entity, you got to go to Congress.
- [47:20]
Isabella Royo
Exactly. And so this is potentially Congress dealing with that, that seems likely, but 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?
- [47:47]
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 got to 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?
- [48:31]
Molly Reynolds
So first thing I want to say is that 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's 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. While yes, 60 votes is 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 major 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 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 19 deadline, but because 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 margin was pretty comfortable in favor. So so I suspect that that's sort of what we'll see in the Senate next week.
- [50:38]
Benjamin Wittes
Preston, 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?
- [51:32]
Narrator/Advertiser
Well, I'll say I don't know. And it's just because the politics of this issue, as we've discussed, are all over the place. But what I will say is that is to your point about the different camps, the Senate has been interesting because 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 more targeted at reforming the section 702 sort of query process than it is at limiting it or potentially trying to do away with it altogether. So that was one bill. And then sort of in a similar timeframe, 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 coalition that Molly was talking about. So 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 some of these dynamics may play in terms of a pro warrant requirement, no warrant requirement. What I will say is, is that to your point about congressional leadership, it is interesting. Senator Dick Durbin worked with Senator Mike Lee to put forward an additional bill. Just under a month ago, there was this discussion that maybe Durbin and Lee could reach compromise in terms of 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 statute were to be passed would ultimately make it just as difficult for the government to run a U.S. person query as it might 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 the Senate dynamics are fully primed to come down again on this question of do we have a warrant requirement or do we not.
- [54:16]
Isabella Royo
So again, getting in the weeds just a little bit. The way I look at the Durbin Lee compromise bill that was has also Senator Wyden signed onto what a big. The biggest difference if we're talking about the warrant requirement is that 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. When I say content, I mean content of the communications, it can access the metadata, then it has to go and get a warrant.
- [54:58]
Molly Reynolds
So.
- [55:00]
Isabella Royo
It'S sort of borrowing from something the 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.
- [55:18]
Molly Reynolds
Right.
- [55:18]
Benjamin Wittes
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.
- [55:47]
Isabella Royo
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, right?
- [55:57]
Benjamin Wittes
No, no, I'm not saying that there's no possible answer to that. I'm just saying that's the government's great fear.
- [56:08]
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 here should be like, do we think a warrant requirement has 60 votes in the Senate? Not does a bill without 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 make 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 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.
- [57:42]
Benjamin Wittes
In the same way we're gonna leave it there. Stephanie Powell, Preston Marquis, Molly Reynolds thank you all for joining us today. The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode was me. I did it myself, folks. Tweet about the Lawfare Podcast Share us on Facebook Facebook Pinterest Blue Sky Mastodon I don't can't even keep track of all the new social media sites that you should be sharing the Lawfare Podcast on, but whichever one you use, share the Lawfare Podcast. The Lawfare Podcast is edited by the estimable Jen Patia. Our music is performed by the estimable Sophia Yan. And as always, thanks for listening.
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Isabella Royo
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