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Communications providers ordered to assist government efforts to monitor foreigners abroad may bring court challenges if the government proceeds with surveillance without Congress renewing the underlying law, former intelligence officials told Bloomberg Law.
U.S. intelligence and law enforcement authorities, including the National Security Agency and the FBI, rely on the Foreign Surveillance Intelligence Act (FISA) Section 702 to conduct surveillance on communication data of foreigners outside of the U.S. But the authorization ends Dec. 31, and Congress hasn’t reached an agreement to permanently extend the program, reauthorize it with a sunset provision, or enact a stopgap measure to keep the program going for a short time while debate continues.
Regardless of the congressional outcome, the U.S. government will be able to temporarily continue Section 702 communications surveillance under a Foreign Intelligence Surveillance Court, or FISA Court, order, Brian Hale, a spokesman for the Office of the Director of National Intelligence, told Bloomberg Law Dec. 7.
The government can rely on a FISA Court order from April 2017 that approved the use of Section 702 for one year, Susan Hennessey, fellow of governance studies at the Brookings Institution in Washington and former attorney in the Office of the General Counsel of the NSA, told Bloomberg Law Dec. 7. That would allow ongoing investigations to continue through April 2018 and even add new targets for surveillance under existing authorizations, she said. However, the government couldn’t seek completely new authorizations to expand surveillance, she said.
The general uncertainty of the situation may lead to court challenges from email and internet service providers, such as Alphabet Inc.'s Google, Microsoft Corp., and AT&T Inc., which are routinely served with surveillance orders under Section 702, former intelligence officials said.
“Once the underlying statute lapses, service providers will likely seek to challenge orders to produce communications data,” Hennessey said. Although “the legal question is more or less settled in the government’s favor,” it would allow “for a service provider to mount a legal challenge that could have short term practical implications.”
Communications providers might seek the FISA Court’s opinion on the validity of specific disclosure requests from the government, delaying the investigation process.
“The government’s theory on FISA Section 702 authority after Jan. 1 hasn’t been proved or tested in court,” Robert Litt, national security of counsel at Morrison and Foerster LLP in Washington and former general counsel for the Director of National Intelligence, told Bloomberg Law Dec. 7. Given the uncertainty, Congress may be willing to pass a temporary reauthorization to buy additional time to resolve the debate over whether to make the law permanent or otherwise change the existing statute, he said.
There are a slew of FISA Section 702 reauthorization bills in the House and Senate. The leading contenders are companion bills from the House and Senate Intelligence committees, and companion bills from the House and Senate Judiciary committees.
The Intelligence bills are the most likely avenue for FISA Section 702 reauthorization, Hennessey said. They come closer to a clean reauthorization—making the law permanent without other substantive changes— because they only include minor changes, she said.
But House Judiciary Committee Chairman Bob Goodlatte (R-Va.) hopes to add further privacy and civil liberties oversight protections to the bill.
The White House and the intelligence community have pushed for a clean reauthorization.
A U.S. intelligence official who spoke on condition of anonymity to discuss the matter said a clean reauthorization is preferable but none of the leading House or Senate reauthorization bills offer that option without a sunset provision. The intelligence community is working with Congress on a solution that will maintain the law’s utility while ensuring confidence in privacy protections, the official said.
FBI Director Christopher Wray echoed these sentiments during a House Judiciary Committee hearing Dec. 7. Congress must “not rebuild walls that existed before 9/11" and pass a clean reauthorization bill, he testified.
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