Monday, April 15, 2024

Cybersecurity and FISA §702 Reauthorization

Last Friday, during the consideration of HR 7888, the Reforming Intelligence and Securing America Act, the House took up Amendment #1 offered under H Rept 118-456 (pg 5). That amendment would have provided for a warrant requirement for reviewing/using information on US persons obtained under §702 of the Foreign Intelligence Surveillance Act. One of the provisions of that amendment was an exemption from the added warrant requirement for cybersecurity purposes. Amendment #1 was defeated by a vote of 212 to 212 (tie votes in the House do not pass) with significant vote splits in both parties.

The amendment would revise the proposed language for §702(f)(2) {original language at 50 USC 1881a(f)(2)} found in §3(a) (pgs 14-15) of the version of HR 7888 being considered. The Amendment #1 language included a subparagraph (B) that provided for exceptions for the need of a warrant. Claus (IV) of that subparagraph provides for an exemption if the “the query uses a known cybersecurity threat signature as a query term”. The exemption would also require that:

• The query is conducted, and the results of the query are used, for the sole purpose of identifying targeted recipients of malicious software and preventing or mitigating harm from such malicious software,

• No additional contents of communications acquired as a result of the query are accessed or reviewed, and

• Each such query is reported to the Foreign Intelligence Surveillance Court.

Obviously, the House was evenly divided about the need to add a warrant requirement to the FISA §702 reauthorization, so there continues to be significant concerns about how the §702 data is being used in practice. It seems to me that the proposed cybersecurity exemption to the warrant requirements was an honest attempt to mitigate some legitimate anti-warrant concerns. Because this was buried in a nine-page amendment, I am not sure that the exception was specifically considered by any member voting on the amendment. Perhaps with more time to consider and debate such provisions this could have swayed one or more votes to accept the general warrant requirements.

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