LET’S GET DOWN TO BUSINESS — Almost a full year since we started writing about the looming expiration of Section 702 of the Foreign Intelligence Surveillance Act, we’ve finally hit our first major fork in the road. On Tuesday, the House will weigh radically different visions for the future of the surveillance program, with lawmakers set to make a do-or-die choice between brand-new bills — each approved overwhelmingly late last week — out of the Intelligence and Judiciary committees. While the long-raging debate may have seemed set in stone, the release of the two bills sent D.C.'s policy and legal elite scrambling to scour either package in search of fatal defects — and then delivering briefings, penning letters and, yes, badgering reporters with grist they hope can tilt the high-stakes Tuesday referendum. Here’s a breakdown of what will stick, what might and what probably shouldn’t. What probably shouldn’t — On Friday, senior national security officials from the Biden administration briefed Democratic staffers on the myriad problems they see in the Judiciary Committee’s “catastrophic” bill, as I reported at the time. But one concern that probably shouldn’t carry the day? A typo that would have short-circuited the legal foundation of Section 702 altogether. Russell Dye, a spokesperson for the Judiciary Committee, acknowledged to MC that the language included in that part of the bill — Section 21D — was a “just a typo.” He said it would be fixed before Tuesday. But the bill's opponents don’t think the mishap should go completely forgotten. “How fundamentally does that speak to the hasty craftsmanship in the bill and the sense that this is not the right way to go about it?” a senior administration official, granted anonymity to talk openly about Section 702, told MC. What might #1 — A little-noticed part of the HPSCI bill could greatly expand the range of business required to provide the government with communications data under Section 702, as a pair of lawyers first pointed out Friday. Asked about that text — found in Section 504 of the bill — a staffer for the Intelligence Committee, granted anonymity to speak candidly about it, called the interpretation “wildly off.” While the exact justification remains classified, the individual said, it “relates to getting intelligence on high-priority foreign intelligence targets overseas, with no impact on Americans.” The staffer also argued the executive branch shared the committee’s “extremely narrow” interpretation of Section 504, something the administration official seconded. But privacy advocates are clearly skeptical — and fired up. “There’s just no question that Section 504 creates a massive expansion in Section 702 surveillance,” Elizabeth Goitein, the senior director of the Brennan Center for Justice’s Liberty & National Security Program, told MC. What might #2 — The Judiciary Committee bill would prevent U.S. law enforcement agencies from buying Americans’ data from third-party data brokers. It's a popular idea among a wide swathe of Americans. But the politics behind it remain surprisingly complicated — in part because the data remains up for grabs to U.S. adversaries, and in part because many state and local law enforcement groups oppose it. Expect the White House and its allies to lean heavily into the idea that it’s dangerous to slap one complex and disputed law on top of another — especially given how fast everything is unfolding. “That is a full project unto itself,” the senior administration official said. What will — The House Judiciary bill would mandate that U.S. intelligence agencies acquire a warrant before searching through Section 702 data to suss out whether Americans are conspiring with — or being targeted by — foreign spies, terrorists and cyber criminals. Depending on how you see it, the proposal is the greatest asset — or biggest liability — of the bill. Dye, the communications director, said the warrant is the only way to rein in the FBI, which has a history of violating internal guardrails meant to protect Americans’ privacy rights. But the administration has argued for months that a warrant would dramatically undercut one of its most effective spy tools. And it will surely make that case tonight, when five of its most senior-ranking intelligence officials give a classified briefing on Section 702 to Democratic lawmakers. It’s all on the line — Neither bill will become law exactly as is. But if nothing else, all the hair-splitting over them just goes to show how intense the vote 36 hours from now will be. “Do we want to rein in, expand or leave Section 702 the same?” asked Jake Laperruque, the deputy director at the Center for Democracy and Technology, and a strong critic of the Intelligence panel’s proposal. The senior administration official countered: “I can't emphasize strongly enough that the Judiciary Committee bill has elements that would be quite devastating for national security.”
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