Senate to Narrow Scope of Secret Surveillance Law

Last month in a bit of a crazed hurry, Congress approved the renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 came out of 9-11 and our lack of intelligence. I know you can’t use government and intelligence in the same paragraph without laughing, but stick with me. But Congress didn’t trust the rest of the government, so the law sunsets every few years, typically 5 years. This time Congress decided it trusted the government even less and only renewed the law for two years.

Still, there was a race to the finish line so there really wasn’t time to actually craft the bill correctly. The concern was that if the current law expired, even though the FISA court “extended” the reach of the old law for one more year, many service providers would tell the NSA to take a long walk off a short pier (or similar words that are not suitable for this blog). Something similar to that happened in 2008 and even though the government eventually won then, it doesn’t mean they would win this time and the litigation would be public and ugly. Hence the compromise – pass it now and fix it later.

The government promises that sometimes but rarely delivers on that promise. Maybe in this case they will deliver.

One of the issues in the bill was a dramatic expansion of the definition of Electronic Communications Service Providers (ECSP). In the law passed last month, it was feared that the definition could incorporate just about anyone and force them to secretly spy for the government. There were a lot of people who were unhappy about this, but we can’t leave the spies out in the cold so the bill passed anyway.

Last month the Justice Department promised to use the new definition in a limited fashion (sure, we believe them). The entire subject is classified so we don’t really know the details.

However, in this case, it appears, maybe, that Congress will actually do what it says (although whatever that is is still classified, so we don’t know for sure). The Senate Intelligence Committee “clarified” the definition of ECSP to cover only the category of provider that is the subject of an ongoing investigation in their must pass intelligence community funding bill.

If approved, that would put DoJ’s promise into law.

Again, if it happens, it will fulfill the promise Senator Mark Warner made when the bill was passed. Unusual for Congress.

While a lot of people are unhappy that all of this is happening in secret and may remain secret since we don’t really want our enemies to know the exact metrics of our surveillance and secret is not great, if we trust these guys then the result is an improvement

Probably this is good but we will revisit it again in less than two years. I am sure it will be just as big a dumpster fire then as it was now. Credit: The Record

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