Congress passed and President Biden signed a reauthorization of Title VII of the Foreign Intelligence Surveillance Act (FISA), approving a bill that opponents say includes a "major expansion of warrantless surveillance" under Section 702 of FISA.
Over the weekend, the Reforming Intelligence and Securing America Act was approved by the Senate in a 60-34 vote. The yes votes included 30 Republicans, 28 Democrats, and two independents who caucus with Democrats. The bill, which was previously passed by the House and reauthorizes Section 702 of FISA for two years, was signed by President Biden on Saturday.
"Thousands and thousands of Americans could be forced into spying for the government by this new bill and with no warrant or direct court oversight whatsoever," Sen. Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence, said on Friday. "Forcing ordinary Americans and small businesses to conduct secret, warrantless spying is what authoritarian countries do, not democracies."
Wyden and Sen. Cynthia Lummis (R-Wyo.) led a bipartisan group of eight senators who submitted an amendment to reverse what Wyden's office called "a major expansion of warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act that was included in the House-passed bill." After the bill was approved by the Senate without the amendment, Wyden said it seemed "that senators were unwilling to send this bill back to the House, no matter how common-sense the amendment before them."
AdvertisementSen. Ted Cruz (R-Texas) said he voted against the reauthorization "because it failed to include the most important requirement to protect Americans' civil rights: that law enforcement get a warrant before targeting a US citizen."
Bill expands definition of service provider
The Wyden/Lummis amendment would have struck language that expands the definition of an electronic communication service provider to include, with some exceptions, any "service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications." The exceptions are for public accommodation facilities, dwellings, community facilities, and food service establishments.
"Instead of using the opportunity to curb warrantless surveillance of Americans' private communications and protect the public's privacy, Congress passed an expansive, unchecked surveillance authority," Sen. Edward J. Markey (D-Mass.) said after the vote. "This FISA reauthorization legislation is a step backwards, doing nothing to address the extent to which the government conducts surveillance over its own citizens."
Under the 2008 FISA Amendments Act, electronic communication service providers already included telecommunications carriers, providers of electronic communication services, providers of remote computing services, and "any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored." These entities must provide the government with information, facilities, and assistance necessary to obtain communications.
The Brennan Center for Justice at New York University School of Law called the reauthorization "the largest expansion of domestic surveillance authority since the Patriot Act."
"The bill, which would effectively grant the federal government access to the communications equipment of almost any business in the United States, is a gift to any president who may wish to spy on political enemies," said Elizabeth Goitein, senior director of the Brennan Center's Liberty and National Security Program.
“Incidental” surveillance of US residents
Although Section 702 authorizes electronic surveillance of non-US people overseas, the official summary of the reauthorization bill notes that "information about US persons may incidentally be acquired by this type of surveillance and subsequently searched or 'queried' under certain circumstances."
The nonprofit Electronic Frontier Foundation argues that the National Security Agency's "warrantless collection of Americans' communications is an intended and inherent part of the system."
"The intelligence community calls this 'incidental' collection to downplay the fact that it routinely uses this broad and privacy-invasive foreign intelligence surveillance authority to collect Americans' communications that should require a warrant," the EFF says.
The Senate vote came just in time to let surveillance continue without interruption. "Hours before the law was set to expire, US officials were already scrambling after two major US communication providers said they would stop complying with orders through the surveillance program, according to a person familiar with the matter, who spoke on the condition of anonymity to discuss private negotiations," according to the Associated Press.
New limits on data collection
The reauthorization bill imposes some new limits on data collection. For example, FBI personnel must obtain prior approval from an FBI supervisor or attorney before making queries about US people. But this provision has an exception allowing such queries without prior approval if "the query could assist in mitigating or eliminating a threat to life or serious bodily harm."
AdvertisementThere are also some new limits on queries involving elected US officials, political candidates, political organizations, media organizations, journalists, and religious groups. There is a prohibition on "the involvement of political appointees in the approval process for such politically sensitive query requests," and a requirement that the FBI director "establish consequences for noncompliant querying of US person terms, including zero tolerance for willful misconduct."
US Attorney General Merrick Garland praised the FISA reauthorization, saying it gives the US "authority to continue to collect foreign intelligence information about non-US persons located outside the United States, while at the same time codifying important reforms the Justice Department has adopted to ensure the protection of Americans' privacy and civil liberties."
Senate Majority Leader Chuck Schumer (D-N.Y.) said that letting FISA expire "would have been dangerous. It's an important part of our national security toolkit and helps law enforcement stop terrorist attacks, drug trafficking, and violent extremism. This legislation has been carefully tailored, and I am ready to work with colleagues on both sides of the aisle to keep strengthening protections for American citizens."
Senate Republican Leader Mitch McConnell (R-Ky.) supported the reauthorization bill, saying the Senate faced a choice to "pass the House reform bill, or give free rein to foreign intelligence operatives and terrorists to target America."
