But Clickbait Is Great For Getting Picked Up

However, two years ago, in April 2022, the Assistant Attorney General for National Security and the Director of National Intelligence sought, and got, the usual permission from the FISA court to query a company. The company balked and petitioned to set aside the order via a procedure outlined in the law, claiming it didn’t fit the definition of an “electronic communications service provider.” Shockingly, first the Foreign Intelligence Service Court (FISC) and then the FISC Court of Review agreed, adding:

Any unintended gap in coverage revealed by our interpretation is… open to reconsideration by the branches of government whose competence and constitutional authority extend to statutory revision.

In other words, “Go bother Congress with this.” This ruling of last August reportedly was not received well in the intelligence community, and quickly led to heated appeals to lawmakers, including especially members of the House Intelligence Committee, who lobbied the leadership in both parties to fix the glitch.

The eventual result was new language in the reauthorization bill. Starting with the existing definition of an ECSP as a company with “access to wire or electronic communications either as such communications are transmitted or as such communications are stored,” members now wrapped in any employee, agent, or “custodian” of “equipment that is being or may be used to transmit or store such communications.”

Unfortunately, this isn’t as dull a change as it sounds. What might it look like in practice?

“The way that definition is written, that could apply to anyone who could access those [electronic communications],” said one Hill staffer. “That includes the cable guy, it includes a plumber or an electrician, anyone who could physically access a wire, a cable box WiFi, or a phone or a computer.”

That's really scary guys, scarier than google playing hardball over CA's demands that they pay.