The
Senate
is
moving
forward
on
a
vote
to
reauthorize
a
controversial
program
that
allows
warrantless
surveillance
of
foreign
“targets.”
Before
voting
on
the
reauthorization
bill,
senators
had
to
vote
on
a
cloture
motion
to
begin
voting.
The
cloture
motion
passed
67–32,
just
one
day
ahead
of
the
program’s
expiration.
Section
702
of
the
Foreign
Intelligence
Surveillance
Act
(FISA)
is
set
to
expire
at
midnight
on
April
19th,
a
deadline
some
senators
emphasized
as
they
urged
their
colleagues
to
vote
in
favor
of
reauthorization.
“It’s
hard
to
overstate
either
the
importance
—
the
gravity
—
of
allowing
it
to
sunset,
yet
we
are
36
hours
away
from
that
happening,”
Sen.
Mark
Warner
(D-VA)
said
on
the
Senate
floor.
“I
understand
that
some
of
my
colleagues
would
like
to
amend
the
House
passed
bill
and
continue
the
process
of
debate
and
negotiation.
Listen,
there
are
things
I’d
like
to
change
in
the
House
bill
as
well.
The
choice
before
us
as
we
think
about
amendments
—
this
is
the
case
—
is
pass
this
bill,
or
allow
702
to
sunset.”
The
House
bill
Warner
was
referring
to,
which
passed
on
April
12th
after
three
failed
attempts,
lacks
an
amendment
that
would
require
federal
intelligence
agencies
to
obtain
a
warrant
before
accessing
Americans’
data.
A
bipartisan
coalition
of
House
members
supported
the
amendment,
which
was
narrowly
defeated
on
a
212–212
vote.
Earlier
in
March,
Sen.
Dick
Durbin
(D-IL)
introduced
a
companion
warrant
requirement
in
the
Senate.
(The
Durbin
amendment
differs
slightly
from
the
failed
House
amendment
in
that
it
would
require
intelligence
agencies
to
obtain
FISA
Title
I
orders
or
warrants
before
accessing
Americans’
communications
under
Section
702
but
not
before
querying
for
those
communications.)
Punchbowl
News
reports
that
the
Biden
administration
has
begun
circulating
a
letter
to
senators
claiming
that
the
Durbin
amendment
“threatens
national
security.”
Although
Warner
urged
the
Senate
to
move
quickly
and
without
the
warrant
requirement
amendment
due
to
a
looming
expiration
date,
Section
702
would
still
be
in
place
for
another
year
even
if
the
Senate
votes
against
reauthorization.
On
April
5th,
the
FISA
court
granted
a
government
request
authorizing
the
program
until
April
2025.
“Under
the
statute,
any
ongoing
activities
can
continue
until
the
certification
expires,
which
would
be
April
5th
of
next
year,”
Kia
Hamadanchy,
senior
federal
policy
counsel
at
the
American
Civil
Liberties
Union,
told
The
Verge.
“It’s
what
I
like
to
call
a
zombie
certification,
because
the
law
is
expired
but
the
certification
is
ongoing.”
“It’s
what
I
like
to
call
a
zombie
certification,
because
the
law
is
expired
but
the
certification
is
ongoing.”
A
separate
amendment
introduced
by
Reps.
Mike
Turner
(R-OH)
and
Jim
Himes
(D-CT)
expanding
the
definition
of
“electronic
communications
service
(ECS)
provider”
did
make
it
into
the
bill.
Under
the
new
amendment,
ECS
providers
are
now
defined
as
“any
service
provider”
that
has
“access
to
equipment
that
is
being
or
may
be
used
to
transmit
or
store
wire
or
electronic
communications.”
The
White
House
has
expressed
support
for
the
Turner-Himes
amendment.
On
April
17th,
National
Security
Advisor
Jake
Sullivan
urged
the
Senate
to
“reject
mischaracterizations”
of
the
amendment,
which
critics
have
said
effectively
turns
Americans
into
spies
for
the
government.
“It
allows
the
government
to
force
any
American
who
installs,
maintains,
or
repairs
anything
that
transmits
or
stores
communications
to
spy
on
the
government’s
behalf,”
Sen.
Ron
Wyden
(D-OR)
said
in
a
statement
after
the
House
bill
passed.
“That
means
anyone
with
access
to
a
server,
a
wire,
a
cable
box,
a
wifi
router,
or
a
phone.
It
would
be
secret:
the
Americans
receiving
the
government
directives
would
be
bound
to
silence,
and
there
would
be
no
court
oversight.”
“I
think
the
amendment
could
have
been
drafted
better,”
Warner
said
on
the
Senate
floor
before
referencing
a
letter
from
Attorney
General
Merrick
Garland
pledging
to
interpret
the
amendment
narrowly.
“In
that
letter,
the
Attorney
General
says,
and
I
quote,
it
would
be
unlawful
under
Section
702
to
use
the
modified
definition
of
ECSP
[electronic
communication
service
provider]
to
target
any
entity
inside
the
United
States,
including,
for
example,
any
business,
home,
or
place
of
worship.”
Andrew
Crocker,
the
surveillance
litigation
director
at
the
Electronic
Frontier
Foundation,
said
the
ECSP
amendment
drastically
expands
the
scope
of
which
communications
providers
can
be
forced
to
assist
the
government’s
surveillance
efforts.
“The
Justice
Department
is
playing
word
games
when
it
says
the
amendment
doesn’t
change
the
‘structure’
of
702
because
the
law
prohibits
targeting
entities
inside
the
United
States,”
Crocker
told
The
Verge.
Garland’s
pledge,
he
added,
“isn’t
worth
the
paper
it’s
printed
on;
if
this
amendment
becomes
law,
the
DOJ
can
and
almost
certainly
will
rely
on
it
to
conscript
other
providers
who
fit
within
its
very
broad
scope.”
If
reauthorized,
Section
702
will
be
in
place
until
2026.
Update
April
18,
4:00PM
ET:
This
article
has
been
updated
with
a
statement
from
the
Electronic
Frontier
Foundation.
(Originally posted by Gaby Del Valle)
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