New Section 702 Changes Annihilates 4th Amendment Rights

A FISA reauthorization bill that passed the house, with 147 Democrats and 126 Republicans in favor, and sits in the senate has broadened the definition of ‘electronic communication service provider’ in section 504 to include:

‘any service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored or equipment that is being or may be used to transmit or store such communications.’ And ‘any officer, employee, custodian or agent of an entity described in subparagraph.’

By striking through ‘other communication’ and inserting ‘equipment that is being or may be used to transmit or store such communications’ and adding custodians to the list of persons who can be compelled to comply with warrantless FISA surveillance.

The changes (in bold) are likely the efforts of Biden's DOJ and director of National Intelligence to broaden the scope of warrantless surveillance they can conduct on companies and persons in contact with foreign nationals outside the U.S. after a FISA review court denied their query into an undisclosed company last August, because the company did not meet the current definition, and basically told them to go to congress for a revision of the law.

Furthermore, nothing in the legislative record or case law cited by the parties supports the Government' s suggestion that Congress intended the definition of ECSP under subparagraph D to encompass [redacted] ………..Any unintended gap in coverage revealed by our interpretation is, of course, open to reconsideration by the branches of government whose competence and constitutional authority extend to statutory revision.

As others have pointed out (here and here) this more ambiguous definition could compel any service provider including commercial landlords, janitorial services, and hotels with Wifi routers or as Senator Ron Wyden has pointed out anyone with access to the laptop or SMART phone of a journalist corresponding with foreign nationals outside the U.S. to comply with FISA searches. Of course, congress carved out special legal privileges for themselves in the bill. For instance, section 103 requires the FBI to notify congressional leadership of any query that they reasonably believe could include the name or other personally identifiable information of a congress critter along with the particular congress critter who might be identified. Anyone else’s service provider gets hit with a gag order and they remain none the wiser. Section 105 carves out even more restrictions for warrantless surveillance that may reveal information on any politician, bureaucrat, candidate, or MSM pundit requiring approval from the deputy director.

As I pointed out 5 years ago in Telecom and Tech Companies Are Agents of the State, the NSA conducts thousands of warrantless searches of the contents of Americans’ phone calls, texts, and emails every year and provides LEOs unscreened access to it, under Obama’s changes to EO 12333, if it contains evidence of a crime or ‘evidence of a possible commission of a crime and reported as provided in the Memorandum of Understanding: Reporting of Information Concerning Federal Crimes, or any successor documents.’ As I noted 7 years ago, the memorandum allows the NSA to provide call detail records that do not contain foreign intelligence information but are reasonably believed to contain evidence of a crime that is or might be committed by a U.S. citizen to the respective LE agencies and/or retain them for at least 6 months. As I noted in 2016 from an NYT report, this allows LEOs to use the fruit of the poisonous tree against citizens which prosecutors can shoehorn into their cases through parallel construction.

Update:

This was passed by the senate and signed into law.

Originally posted on Quora April 17, 2024