We needed a little perspective before reporting on the historic showdown on the reauthorization of FISA Section 702 that ended on April 19 with a late-night Senate vote. The bottom line: The surveillance reform coalition finally made it to the legislative equivalent of the Super Bowl. We won’t be taking home any Super Bowl rings, but we made a lot of yardage and racked up impressive touchdowns.
For years, PPSA has coordinated with a wide array of leading civil liberties organizations across the ideological spectrum toward that key moment. We worked hard and enjoyed the support of our followers in flooding Congress with calls and emails supporting privacy and surveillance reform. So what was the result? We failed to get a warrant requirement for Section 702 data but came within one vote of winning it in the House. There was a lot of good news and new reforms that should not be overlooked. And where the news was bad, there are silver linings that gleam.
We come out of this legislative fracas bloodied but energized. We put together a durable left-right coalition in which House Judiciary Committee Chairman Jim Jordan and Ranking Member Jerry Nadler, as well as the heads of the Freedom and Progressive caucuses, who worked side-by-side. For the first time, our surveillance coalition had the intelligence community and their champions on the run. We lost the warrant provision for Section 702 only by a tie vote. Had every House Member who supported our position been in attendance, we would have won. This bodes well for the next time Section 702 reauthorization comes up. We will be ready. Let’s not forget that a recent bipartisan YouGov poll shows that 80 percent of Americans support warrant requirements. We sense a gathering of momentum – and we look forward to preparing for the next big round in April 2026. The disappointments of this evening’s votes cannot hide the momentum of a civil liberties coalition that won enhanced oversight of the FBI, and reduced the next reauthorization from five years to two. We made the forces of the status quo fight on warrant requirements, whittling them down to a tie vote, despite the vociferous opposition of the administration. The growing momentum of the surveillance reform coalition reflects the 80 percent support of the American people for warrants. We’ve got the momentum and we will be back.
ITI is the big tent tech association with members that rank among America’s most innovative companies, such as Dell, Salesforce, and Texas Instruments. ITI is warning the Senate to strip out language in the Reforming Intelligence and Securing America Act (RISAA) that “vastly expands the U.S. government’s warrantless surveillance capabilities.”
This language was added as an amendment by the House Permanent Select Committee on Intelligence. It requires “any service provider” or “custodians” with “access to equipment that is being or may be used to transmit or store wire or electronic communications,” to grant the government access to warrantlessly acquired messages. Some on Capitol Hill are questioning if this provision is really as broad as it reads. It is being portrayed by the intelligence community as a technical fix that will allow the NSA to selectively surveil foreign intelligence targets. The ITI and hundreds of other organizations beg to differ. ITI writes that adding “access to equipment” is a monumental change because – from routers and switches to servers and virtual networking gear to the internet and communications that ride on it – all global communications transmission and storage are powered by real-life physical information and communications technology (ICT). And ITI writes “there are tens of thousands of such companies” that use such equipment. “Expanding the definition to ‘any’ service provider by dropping ‘communications’ has equally wide-ranging implications when we factor in the multiplicity of service providers who play a role in helping to transmit or store the ICT communications,” ITI writes. “For example, on its face the amendment would appear to cover data centers, cloud storage providers, co-location providers, managed security services providers and a variety of other companies who provide services underlying or related to ICT communications transmission and storage; or merely those many companies and individuals who have access to the equipment necessary to provide such services – from building and facilities owners/landlords to cleaning/janitorial staff to the many types of commercial entities that provide a WiFi connection to their guests.” (Emphasis added.) Thus, the nation’s most innovation companies validate civil liberties experts who characterize this amendment as the “Everyone’s a Spy” provision. On a final note, ITI writes that this provision complicates the already contentious and complicated efforts of the Biden Administration to comply with the new EU-US Data Privacy Framework. It is hard to imagine that European politicians and EU regulators will not react to this vast expansion of U.S. surveillance, most likely in a protectionist manner that will harm U.S. exports and competitiveness. So take it from the experts – this language is as exactly as expansive as it reads. It is critical for the Senate to remove it before passing the bill. Like a gourmand gorging at a banquet table, the government’s growing appetite for expanding surveillance is beginning to get a little hard watch. Consider some recent developments.
First, the Senate is voting this week on a bill to reauthorize FISA Section 702 with an amendment that includes what Sen. Ron Wyden calls “one of the most dramatic and terrifying expansions of government surveillance authority in history.” This bill would compel millions of small businesses that merely have “access” to “communications equipment” (like Wi-Fi) to hand over customers’ messages to the government. Little wonder this has been branded the “Everyone’s a Spy” provision. Second, the House will also vote on the Fourth Amendment Is Not For Sale Act, which would curb the practice of the FBI and other federal agencies of purchasing Americans’ most sensitive digital information from data brokers. Third, a House Judiciary Committee investigation also recently found that the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) has been working with banks to conduct warrantless dragnets of large numbers of Americans’ confidential financial information, often using politically charged search terms. In all, 650 companies were connected to the FBI’s web port, covering two-thirds of U.S. GDP and 35 million people. See a pattern here? The government’s hunger to expand surveillance into every realm of American life cannot be filled. Many of these programs – like data purchases and FinCEN surveillance – are based on no law and fall under no Congressional or judicial oversight. Now, thanks to former Attorney General William Barr, we know that the Securities and Exchange Commission (SEC) is also getting in on the act. With no statutory approval, the SEC is taking it upon itself to start a huge database called the Consolidated Audit Trail that will allow 3,000 government employees to track, in real time, the identity of tens of millions of Americans who buy and sell stocks and other securities. “This invites abusive investigatory fishing expeditions, targeting of individuals, and intrusive data mining,” Barr writes in The Wall Street Journal. “Concentrating this sensitive data in a single repository guarantees it inevitably will be hacked, stolen, or misused by bad actors.” Barr mostly dwells on the inappropriateness of government surveillance of millions of people who’ve done nothing suspicious. He adds that “the whole point of the Fourth Amendment is to make the government less efficient by making it jump through hoops when it seeks to delve into private affairs. For an agency to argue that it should be able to avoid these hoops to make investigations easier is to assert that it should be exempt from the Fourth Amendment.” Well stated. This is the same William Barr, however, who also recently took the pages of National Review to persuade his fellow conservatives to support the House Intelligence Committee’s version of FISA reauthorization – which also authorizes many forms of dragnet surveillance. Perhaps it will soon dawn on the supporters of the status quo that the “whole point of the Fourth Amendment” should reach beyond stock trades to include “Everyone’s a Spy,” data purchases and all the other egregious privacy violations of our growing surveillance state. Is it fair to call one amendment to the Reforming Intelligence and Securing America Act (RISAA) the “Everyone’s a Spy” provision? This amendment to RISAA now before the Senate would compel a provider of any service, who has “access” to communications equipment, to quietly cooperate with the NSA in collecting messages.
Because the people who work at most ordinary businesses – from fitness centers to commercial office buildings – have no expertise in parsing data, they would likely just hand over all the messages of their customers to the NSA, including countless messages between Americans. Here’s how Sen. Ron Wyden characterized this measure on the Senate floor: “After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain, and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will and force them to become an agent for Big Brother. “For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night. “This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.” Sen. Wyden is not writing science-fiction. We’ve seen again and again when the FBI and other federal agencies can find a way to expand a loophole – as with backdoor searches of Section 702 data or the data broker loophole – they will do so. When Members of the House voted last week to reauthorize FISA Section 702, most did not realize that an amendment from the House Permanent Select Committee on Intelligence (HPSCI), sold as a “narrow” definitional change to the law, will actually deliver what Sen. Ron Wyden (D-OR) calls “one of the most dramatic and terrifying expansions of government surveillance authority in history.” What the House missed the Senate can still fix. The Senate still has time to perform emergency surgery and excise this particularly toxic amendment. Here’s the background: For years, “electronic communications service providers” such as Verizon or Google’s Gmail have been required to turn over the communications of targets. The House bill expands this requirement to enlist millions of small businesses that provide Wi-Fi or have access to routers or similar communications equipment. This provision would make American small businesses into providers of KGB-like surveillance. If this seems hyperbolic, consider that this HPSCI amendment would force American small businesses of many sorts to collect the communications of their customers for the government. The bill does this by including any service provider who has access to equipment that transmits communications. The language was narrowed to exclude hotels, restaurants, dwellings, and community centers, but the measure still includes most businesses – owners and operators of any facilities that house equipment used to store or carry data, including data centers and commercial office buildings. Millions of Americans, with little or no knowledge of the equipment they own or service –landlords, utility providers, repairmen, plumbers, cleaning contractors, and similar professionals – would have a legal obligation to secretly spy for the government. Lacking any ability to separate the communications of Americans from foreigners, they would be forced either to give the government direct access to the equipment or copy its messages en masse and turn it over. And then they would be under a gag order to keep their snooping a secret. This version of Section 702 reauthorization would be a disaster for small businesses of all sorts. Bound to silence, small businesses would suffer consumer distrust as public knowledge of the contamination of the data supply chain spread. Consumers and business would have no recourse. This bill also marks a terrifying replacement of the constitutional order under the Fourth Amendment. For these reasons, the Senate must do its duty and remove it. Call Your Senators: |
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