Section 702: The debate continues.

Dave Bittner: Hello everyone and welcome to "Caveat," NTK's CyberWire's privacy, surveillance, law, and policy podcast. I'm Dave Bittner and joining me is my cohost, Ben Yelin from the University of Maryland's Center for Cyber Health and Hazard Strategies. Hey there, Ben.

Ben Yelin: Hello, Dave.

Dave Bittner: On today's show, Ben has the story of another legislative battle on reauthorizing Section 702. I got the latest on a New York State bill aiming to restrict the use of AI chatbots when it comes to matters that traditionally require licensed professionals. While this show covers legal topics and Ben is a lawyer, views expressed do not constitute legal advice or official advice on any of the topics we cover, please contact your attorney. All right, Ben, we got a lot to cover here today. You want to kick things off for us?

Ben Yelin: Sure. So, first I'll acknowledge, Dave, this is our 300th episode.

Dave Bittner: Three hundred! Hard to believe.

Ben Yelin: A cause for celebration. It's been quite a fun run and here's to 300 more.

Dave Bittner: So, that's about six years, I guess. Right?

Ben Yelin: It is. And I've loved every minute of it. So --

Dave Bittner: Well, likewise. Thank you for taking the time. It's been a pleasure and I look forward to what's yet to come.

Ben Yelin: And thanks to our very loyal listeners. And unfortunately for our listeners, you're going to hear me talk about a topic that we've covered at nauseum over the years.

Dave Bittner: Way to sell it, Ben, way to sell it.

Ben Yelin: It is still very unsettled. So, you might remember Section 702 of the FISA Amendment's Act of 2008.

Dave Bittner: Yeah.

Ben Yelin: Which is a surveillance law. It authorizes the electronic surveillance of non-U.S. persons located outside of the United States. But mostly it's controversial because of incidental collection of U.S. persons communications. So, if I'm communicating with an overseas target, that goes into a database. Government can search the database without a warrant. The last time this was reauthorized was all the way back in April 2024. And because there was some disagreement among lawmakers about the future direction of the program, they only reauthorized it for two years. And just checked my calendar and that would be next month that the authority is going to expire.

Dave Bittner: Right.

Ben Yelin: And frankly, I don't know how this is going to be reauthorized. It always is. And I assume it will happen this time, but there are just so many potential roadblocks here that I think it's worth covering.

Dave Bittner: All right, well let's dig in here. What's going on?

Ben Yelin: So, Wired had an article about an amendment, a bipartisan amendment being proposed in both the House and the Senate that would institute a warrant requirement in most circumstances for the government to access U.S. persons' communications in the 702 database. Sponsored by Mike Lee, Conservative Republican in the Senate and our friend of the show, in theory I guess, Senator Ron Wyden.

Dave Bittner: The usual suspect, Ron Wyden.

Ben Yelin: Usual suspect. And then in the house it's Republican Warren Davidson and Democrat, Zoe Lofgren. The idea here is Congress has attempted many times to institute this warrant requirement. The Executive Branch under both Democratic and Republican administrations say that this would be to ownerless. Not only would it hurt our intelligence capabilities but it would hurt our law enforcement capabilities because it's very convenient for federal law enforcement agencies to be able to look through this database without going through what they see as kind of a disjointed and cumbersome warrant process.

Dave Bittner: Right.

Ben Yelin: So, this actually failed by one single vote in the House the last time this was being reauthorized. And the Biden administration had to to some lobbying to get some democratic members to vote against it. I think there is bipartisan support for this idea, and I think there is increased momentum behind this idea because of AI. And the reason I mention AI is in the pre-AI days, you have this giant database and searching through the database and searching through the database would take some effort. You have analysts who go through it. You know, it's not like it works slowly. But it's a lot of records to comb through.

Dave Bittner: Yeah.

Ben Yelin: And it's relatively labor intensive. AI changes the game. If you have a good prompt and you want information on a U.S. person, it's going to be much easier to find. If I wanted to develop a full dossier on my political enemies, I would not have to hire Christopher Steel. If I have access to this database, which federal law enforcement agencies do, I could simply have an LLM do it for me. And I think that's one of the major reasons why there's such a push for this amendment. Trump administration is against the amendment. FBI Director, Kash Patel, who previously supported it, at least somewhat I guess in 2024 has said that the FBI is against it. So, we'll have to wait to see if that amendment passes. And then if it passes, is that going to tank the broader reauthorization effort of 702?

Dave Bittner: Right.

Ben Yelin: So, that's one complication. To make things worse, this is a must pass piece of legislation and you know what happens with must pass pieces of legislation. Everybody wants to get on the gravy train, right?

Dave Bittner: Right, right, right. So, they graft things onto it basically?

Ben Yelin: Exactly.

Dave Bittner: Yeah.

Ben Yelin: So, there are some Republican members of the House of Representatives who are murmuring about including the so-called Save America Act to FISA reauthorization.

Dave Bittner: Really? >> Ben Yelin:: Yes. It is not germane at all to FISA representation. This is a bill that would institute a voter ID requirement for in person voting and for main in voting and then also you'd have to prove your citizenship when registering to vote. Right.

Ben Yelin: So, without getting into the merits of that bill, it would be a poison bill for FISA because FISA is going to need democratic support. No Democrat is going to support reauthorization if the State of America Act is included. You know, it can't pass by itself because it doesn't have a filibuster proof majority in the Senate, so this would be kind of an end around way. But I don't think Democrats would play ball. They'd say, we're not voting for FISA reauthorization until you've removed this poison pill.

Dave Bittner: Right.

Ben Yelin: And then the other complication is the Department of Homeland Security is still shut down. And we need to reopen that, so that whole effort to reopen DHS and also institute whatever reforms Democrats are requesting for immigration enforcement, that might end up being grafted onto this effort as well. So, it's going to be a wild month in April to see if this is reauthorized.

Dave Bittner: What are the various ways you can imagine this playing out?

Ben Yelin: So, I could imagine these authority at least temporarily expiring. The reason I say I can only imagine it temporarily expiring is this the crown jewel of our intelligence apparatus. Presidential administrations of both parties have said so. Ultimately, we are in an enhanced threat environment right now with given with what's happening in Iran. So, I just don't see long-term members of Congress failing to reauthorize this authority. One thing I will say is you have to get annual reauthorization from the FISA court to run the Section 702 program. I believe, and I don't know this for sure because the proceedings are secret, but I think it's very possible that the FISA court will reauthorize Section 702 collection for another year. Therefore, that would put off the need to reauthorize the legislation, if that makes sense.

Dave Bittner: It does not.

Ben Yelin: Okay, let's see.

Dave Bittner: Help me understand [laughing]. Who has the ultimate authority here?

Ben Yelin: So, all the FISA court can do is authorize the program that exists in law, so the law describes the parameters of the program. It says that the FISA court has to look over all the details and authorize it. And it can authorize it for up to a year.

Dave Bittner: Okay.

Ben Yelin: I believe, I don't know for sure, I believe that the FISA court has recently done that. And that would authorize Section 702 as is written in the current legislation through early 2027. Now, when we get to early 2027, that's where the roadblock would happen because --

Dave Bittner: I see.

Ben Yelin: There would no longer be a statute authorizing the FISA court to approve 702 targeting procedures.

Dave Bittner: So, we got ourselves a loophole!

Ben Yelin: It's a bit of a loophole. It's a very, very uncertain loophole.

Dave Bittner: Okay.

Ben Yelin: Because you could see, let's say, a criminal gets charged and the evidence is derived from a Section 702 search that took place after the legislative authorization had lapsed, there are going to be all types of legal challenges saying, well just because the FISA court reauthorized it for a year, it doesn't mean the broader program was blah, blah, blah, reauthorized.

Dave Bittner: I see. Yeah.

Ben Yelin: So, that creates a level of uncertainty as well. I can't envision a future where the administration accepts the warrant requirement. Maybe there's some type of compromise they can come up with. They've tried that in the past and most of the compromises have just been, I think, poorly drafted. Back in 2018 during the last reauthorization they came with a provision that a warrant is only required for certain domestic crimes and there are a bunch of exceptions for the most violent crimes, murder, sexual assault, etcetera. I don't think that actually really fixed anything because the exceptions kind of swallowed up the rule. So, they might try and do something like that, some type of compromise, work around that preserves the warrant list database, but also gives some sort of nod to civil liberties' advocates who have complained for a long time that this an avenue for backdoor searches.

Dave Bittner: Is there any chance that there could be a completely fresh look at this or are we kind of stuck in this treadmill of nipping around the edges of 702?

Ben Yelin: I think we're stuck in the treadmill for a couple of reasons. There were actual efforts to reform this the last time reauthorization was up. Not just relating to the warrant requirement, but on some other provisions as well. Some of them ended up being included in the last reauthorization -- things like transparency requirements. And those have made a difference especially within the FBI who has really tightened up its targeting procedures and at least under the previous director, Christopher Wray had said that they had cleaned up their processes to stop the inadvertent collection of U.S. persons communications. But they just haven't gone through that process this time. They haven't gone through, like, a committee markup. There's no, as far as I'm aware, comprehensive FISA reauthorization bill that's had, like, full House and Senate Committee hearings. And we're approaching April. So, this is going to kind of have to come together in a haphazard way. I think there are lot of reasons that that's happened. Tension has been diverted elsewhere to immigration matters, to DHS, to the Save America Act, to everything else that's going on in the news that I think the attention span for members of Congress has been elsewhere. So, it would be nice if we could, like, really review this lock, stock, and barrell and come up with a comprehensive reform proposal that balances civil liberties' needs with National Security needs. And maybe we will do that eventually, but I think for that to happen we'd have to extend the current authority for a few months while we work out the details because I just, I think the clock is running out.

Dave Bittner: Yeah, so for the moment it seems as though we're kicking that can down the road.

Ben Yelin: Probably, yeah. And that's another outcome I could foresee. So, we get to the end of April, nothing is happening. Perhaps there is an agreement to extend the authority through July and then we'll see what happens in July. They've done that in the past. That happened at the end of calendar year 2023 where a lot of other stuff was going on. FISA was set to expire and they said, "Let's punt this off to April." And they were able to get it done that April. So, we shall see. There's a lot of uncertainty here. And the fate of this program is certainly up in the air at this point.

Dave Bittner: How hot are the disagreements from the two sides here? In other words, are these, sort of, you know fundamentally dig in sort of things, or are they collegial disagreement?

Ben Yelin: They're more collegial than you would expect. Partially because this isn't a polarized issue. You have a lot of Civil Libertarian minded Republicans who have been long-time skeptics of Section 702 and are very reformed-minded on this and have been willing to work with super Liberal Democrats to achieve legislative changes here. And we see that with this proposed Warrant Requirement Amendment. Conversely, you have very national security minded Democrats. Chuck Schumer, their leader in the Senate is one of them, who are defenders of Section 702 and want to see it reauthorized. So, it kind of jumbles the coalition a little bit. You know, certainly there are strong disagreements here but it's not like immigration or one of the -- or abortion or some other hot button issue where it's like divided 50-50 and nearly perfectly aligns with party affiliation. That's not what we have here.

Dave Bittner: Yeah.

Ben Yelin: It's people who have genuine disagreements on the balance between having this valuable intelligence tool and protecting civil liberties.

Dave Bittner: Is it wonky enough that we don't see a lot of stump speeches about it?

Ben Yelin: It is, but for the people who do care about it, it rises to the level of an obsession. So, Ron Whyden, he probably writes letters on Section 702, at least every month. That might not be an exaggeration. A letter to the administration about something he's heard that he can't disclose publicly about an abuse in the program or an idea for reform. He mentioned something in the article we're going to post and our show notes covers it where he says 702 needs to be reformed. There needs to be a warrant requirement. I can't really divulge the full details but something that I've seen further indicates the need for a warrant requirement so that this authority is not being abused. SO, we don't know what that is. I mean there have been --

Dave Bittner: It's hard to contend with, right?

Ben Yelin: Yeah. There have been abuses in the past. The abuses have been bipartisan. They have used the Section 702 database to look into Black Lives Matter protestors and January 6 protestors. And I understand people having a problem with it. This is supposed to be a foreign intelligence tool and when we use our intelligence services within the United States, we expect to be protected by the Fourth Amendment's prohibition on warrant lists, unreasonable searches and seizures.

Dave Bittner: Yeah.

Ben Yelin: And when we lose that expectation, I understand people getting angry about it.

Dave Bittner: You can understand how it's irresistible for law enforcement though.

Ben Yelin: Oh, yeah. It's very powerful and they will come and testify and say we need this. The Director of National Intelligence right now is Tulsi Gabbard. She has been a critic of this in the past. It came up at her confirmation hearings. But now, she's toeing the line and agrees that this needs to be reauthorized.

Dave Bittner: Interesting.

Ben Yelin: So, once you get into that position of power, you realize how critical it is to protect our national security.

Dave Bittner: We'll be right back. [ Music ] My story this week comes from the folks over at Bitdefender. Interesting blog posts here. It's titled "AI Isn't Your Lawyer or Doctor - New York Lawmakers say 'It's Time to Draw the Line.'" And basically, what this comes down to, Ben is we've got State Senator, Kristen Gonzlez, who is looking to amend New York's General Business Law to prohibit AI chatbots from providing substantive responses, information, or advice that would replace the services of a licensed profession. In other words, if you are anything that requires a license, so obviously a doctor, a lawyer, but I imagine also an electrician, a plumber --

Ben Yelin: A dentist.

Dave Bittner: A dentist, right, any of these sorts of things --

Ben Yelin: A hairstylist in some states --

Dave Bittner: Sure, sure.

Ben Yelin: Requires a license. Yeah.

Dave Bittner: Right, right. It would bar chatbots from mimicking the actions of licensed professionals to things like diagnosing health conditions or drafting legal documents, all those sorts of things would be prohibited. What do you make of this, Ben?

Ben Yelin: So, I fully understand the intention here. We've worked on chatbot legislation in Maryland because I do think chatbots require regulation. We've covered some of the most serious incidents where they've supported things like suicidal ideation and there have been lawsuits on that. I think this particular law is overbroad, and I think it's a bad idea, to be honest. First of all, a lot of us have been looking up basic health information about our illnesses. Not on chatbots, but on Google for a long time. With a full understanding that it's not the equivalent advice that we are receiving from our doctors, but it is, for the most part, more helpful than nothing. LLMs are better than traditional Google searches and I found, at least, that it's provided pretty useful information when I have the sniffles and I'm curious, like, "What's going around this time of year?" And "What's a good mediation -- over the counter medication for this symptom?" And it's very convenient. I have the full understanding that that's not advice coming from a doctor and I also would fully support a law that had required disclaimers that said, "I'm not a doctor but happy to provide this information."

Dave Bittner: Right.

Ben Yelin: But prohibiting it from giving any advice whatsoever I think is overbroad. I think it brings up free speech concerns on the part of the developers and the deployers of these chatbots. When you have things like mandatory disclosures, that has it's own free speech concerns because in that case it's compelled speech where you're forcing the chatbot, and therefore it's developers to say something, which the Supreme Court kind of frowns upon. So, it runs into those constitutional problems. And I just think while the effort is laudable, I just think it goes too far. I think we should leverage the good aspect of chatbots and LLMs in providing us useful information in the middle of the night when we can't sleep and when we don't want to bother our doctor, or we don't want to go to urgent care, or if its like, "Here's what happened to me, I got into a car accident, do you think I would have a good legal case?" Like that's helpful background research. I think the average person would fully understand, as we say in the disclaimer for our show, that does not constitute legal -- official legal advice. You shouldn't use it in court. But just shutting people off from that information entirely I think is -- takes things too far in my opinion.

Dave Bittner: Yeah, so it can help provide a filter for whether or not people actually take the time to engage with a true professional which could save everyone time, right?

Ben Yelin: Exactly. And it can inform people on the basics that otherwise their doctor and their lawyer or whomever other licensed professional would have to explain. And I think it could end up being beneficial to actual licensed professionals because I'm sure people go to doctors and dentists all the time for things that could have been answered by an LLM. Now, again, fully need that transparency. People need to know that it's not official medical advice. That this person isn't your doctor. They don't know your full medical history, although you're sure welcome to reveal your full medical history on ChatGPT.

Dave Bittner: In that direction, yeah.

Ben Yelin: I think having those transparency requirements is one thing. But just preventing people from being able to do background research. And then it's like, well what counts as a chatbot? Because Google Gemini shows up in a Google Search. You know, if you Google like, "What do these symptoms mean?" And Gemini responds, is that a chatbot? Does that qualify under the law?

Dave Bittner: Yeah. What about just going to, like, you said at the outset to WebMD? You know, like just looking something up in a book, right?

Ben Yelin: Exactly. And I know that there are unique dangers to chatbots that didn't exist in a book, a book was edited by humans presumably and you always run the risk of hallucinations or false information. But there are risks inherent in everything and as long as people, consenting adults are aware of those risks, I think the positives just outweigh the negatives to me.

Dave Bittner: I wonder how they would enforce this too, you know, because there's so many different levels of chatbots. I mean you can have chatbots that are locally run. They're self-contained on your computer. How are they going to extend the long arm of the law to that? And also, on a state by state basis?

Ben Yelin: Or I was thinking about, like, TurboTax for example. You know, let's say it's giving an advice that technically only in New York State law that's advice that can only be given by a CPA. This is just an example. But like, does that qualify because that person requires a license? So, if I'm like, texting my TurboTax chatbot, "Am I allowed to take this deduction?" And in New York State law, like a CPA is required to answer tax questions, is that going to be illegal? Like, just how far does this extend? You know, I think there are real harms that the authors are trying to prevent here but there's just there are narrower ways of achieving those goals than the kind of blanket ban being proposed here.

Dave Bittner: Yeah, yeah. You could have some kind of a click through disclaimer, like hey, I'm about to give you medical advice. We're all in agreement here.

Ben Yelin: Yeah.

Dave Bittner: You know? [laughing]

Ben Yelin: I am a chatbot.

Dave Bittner: A ULA for this advice, right, "I'm a chatbot, I don't know what I'm talking about. This medical information is for entertainment purposes only."

Ben Yelin: Right. And I think that would be completely appropriate and you and I, and I think most other people would understand that in context where it's like, I know that if I'm searching what does this symptom mean in ChatGPT. Like, I know that that doesn't replace my doctor. And if those symptoms worsen, I will go see my actual doctor. But just for an initial, like, hey, I'm kind of curious about what this might be. Like, that seem to me to be very just useful information that as long as there's that disclaimer, it's not harmful for us to have access to that information. And we should take advantage of the fact that we have this information at our fingertips. Put guardrails around it when we must, but don't nip it in the bud the way this bill proposes to do.

Dave Bittner: Suppose something like this made its way through, could you see First Amendment challenges?

Ben Yelin: Definitely.

Dave Bittner: Yeah?

Ben Yelin: Yeah, I think it would run into major First Amendment problems. Even bills that do not go as far but that seek to regulate chatbots have run into First Amendment issues. Just because of the First Amendment expression rights on the part of the developer. If there is a content-based restriction, which is what this is here, where it's restricting the LLM from specific content, then you run into strict scrutiny where the government has to have a really, really good reason to be enacting this law and the means have to be narrowly tailored. I don't now how you could argue that the means are narrowly tailored here. I think there are a million other ways you could address the problem of chatbot abuse and suicidal ideation advice without instituting this full ban. Even if that is restricting this advice to minors, and requiring some type of age verification, that would be another way of doing this that doesn't prevent adults from seeking out useful information online.

Dave Bittner: You know, it makes me thing, just heard of going up to a higher level about how we've had these recent decisions that the output of chatbots, you know, LLMs are not eligible for copyright protection? So, that makes me wonder are the eligible for First Amendment protection?

Ben Yelin: I mean, most courts have held that they are. It's certainly an open -- it's a very unsettled question. I think if you are seeking to hold the developer or the developer or the deployer accountable in law, or you're seeking to require actions on the part of developers or deployers, then that does invoke free speech rights. It might seem like it's invoking the free speech rights of the chatbot, but really it implicates the developers and the deployers because it stops people from being able to do business in New York and it does so by chilling people's rights of expression through the chatbots that they've created.

Dave Bittner: Right.

Ben Yelin: And you can do that if you have a good reason to do it and I think courts are going to be permissive and certainly these are not unlimited free speech rights on the part of chatbots, but I think most courts have held that to a degree chatbots, they are implied First Amendment implications to restricting chatbots.

Dave Bittner: Well, and I mean I just keep thinking about in the same way that I'm allowed to go to a library in New York or a bookstore and buy some sort of medical guide, right, or --

Ben Yelin: Maybe it's the Medical Guide lobby that's coming up with this.

Dave Bittner: Right [laughing]? But in other words, I don't have to be a licensed doctor to read a medical textbook.

Ben Yelin: Let's take it another step. What about reading, you know, your crazy great aunt on Facebook that's posting about chemtrails and how, you know, all the things that vaccines cause.

Dave Bittner: Right.

Ben Yelin: And you take that advice. Like, I think a chatbot is far more trustworthy if it's correctly trained than some of the bad information one could receive on social media for example.

Dave Bittner: So, right, right. So, the First Amendment protects misinformation.

Ben Yelin: It absolutely does in most contexts.

Dave Bittner: Right.

Ben Yelin: And that's another reason why even if the chatbot is giving out false information, that doesn't really lessen the First Amendment implications.

Dave Bittner: Hm. This is all so messy. Right? I guess because we're pioneering these things. This is, you know, uncharted territory and all that stuff that -

Ben Yelin: I think that's exactly what it is. Like, we're still trying to figure out how to resolve some very real problems and states are taking creative approaches. You know, there's a chatbot bill making its way potentially through the Maryland legislature that institutes regulations for that, at least as it relates to licensed individuals. That is more of a transparency requirement where it just has to reveal that it is not a licensed professional. I think you've seen that approach in other states, Colorado I believe being one of them. But yeah, I think we're just kind of experimenting here because it is a new problem. The problem is real. We've seen the deleterious affects of it and some of these stories are heart wrenching and gutting and we don't want people to think that chatbots are actually their therapists, their doctors, or their attorneys.

Dave Bittner: Right.

Ben Yelin: But prohibiting them from any substantive advice I think is just a bridge too far. In my opinion.

Dave Bittner: Yeah, yeah. No, it's fascinating. All right, well we have a link to all of our stories in the show notes and, of course, we'd love to hear from you. If there's something you'd like us to consider for the show, you can email us. It's Caveat@N2K.com. [ Music ] And that is "Caveat" brought to you by N2K CyberWire. We'd love to know what you think of this podcast. Your feedback ensures we deliver the insights to keep you a step ahead in the rapidly changing world of cybersecurity. If you like our show, please share a rating and review in your favorite podcast app. Please also fill out the survey in the show notes or send an email to caveat@n2k.com. This 300th episode is produced by Liz Stokes. Our Executive Producer is Jennifer Iben. The show is Mixed by Try Hester. Peter Kilpey is our Publisher. I'm Dave Bittner.

Ben Yelin: And I'm Ben Yelin.

Dave Bittner: Thanks for listening.