Update: The FISA Reform and Reauthorization Act of 2023 and a competing bill were both pulled by the House after backlash in a “dramatic showdown.” Read more here.
The U.S. House Intelligence Committee has proposed a reform bill that privacy experts are warning would significantly expand the government’s mass surveillance apparatus.
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The Foreign Intelligence Surveillance Act (FISA) Reform and Reauthorization Act would be the “biggest expansion of surveillance inside the United States since the Patriot Act,” which was implemented in the wake of the 9/11 attack to combat terrorism, said Elizabeth Goitein, the co-director of the Liberty and National Security Program at the Brennan Center for Justice.
“There would be eyes everywhere,” Goitein told Motherboard in a phone call. “Any entity that you visit as a customer, that provides Wi-Fi service, could be required to let the government tap into its equipment, and pull out entire streams of communications.”
The Brennan Center for Justice and the Electronic Privacy Information Center (EPIC) issued a joint statement on Sunday deeming the bill a “wolf in sheep’s clothing” that would target businesses “far outside the tech sector” that “do not even have access to communications,” like libraries. The reform bill is scheduled for a floor vote on Tuesday at 4 p.m.
The bill reauthorizes FISA Section 702. Section 702 lets the government compel U.S. communications companies to assist in surveilling non-U.S. individuals who are outside the country, to account for the fact that “many terrorists and other foreign adversaries were using email accounts serviced by U.S. companies.” However, there is a history of documented abuses of Section 702 by U.S. agencies to spy on citizens who are communicating with someone abroad.
“Section 702 was designed to allow the government to warrantlessly surveil non-U.S. citizens abroad for foreign intelligence purposes,” wrote India McKinney, the director of federal affairs at the Electronic Frontier Foundation (EFF), in an article last week. “Increasingly, it’s this U.S. side of digital conversations that domestic law enforcement agencies trawl through—all without a warrant. FBI agents have been using the Section 702 databases to conduct millions of invasive searches for Americans’ communications, including those of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and even members of Congress.”
Experts point to one provision in the FISA Reform and Reauthorization Act as evidence that it could lead to a massive expansion of the U.S. domestic surveillance apparatus. It expands the definition of “electronic communication service provider”—the entities which the government can compel to assist in surveillance, such as an email service—to include any “equipment that is being or may be used to transmit or store such communications.”
Both EPIC and the Brennan Center are warning that this could be as basic as an ordinary Wi-Fi router at a cafe or library.
“Any business that has access to ‘equipment’ on which communications are stored and transmitted would be fair game,” the organizations’ joint statement reads. “That means hotels, libraries, coffee shops, and other businesses that provide wifi could be compelled to serve as surrogate spies, structuring their systems so that they can give the government access to entire communications streams. Conscripting U.S. business into intelligence agencies’ service was a feature of the 2007 Protect America Act; Congress explicitly and appropriately rejected this feature one year later when it passed Section 702.”
Chris Baumohl, a law fellow at EPIC, said that numerous organizations had signed a letter to the Senate demanding that the provision not be authorized.
“It is truly baffling, given the bipartisan consensus that real reforms are needed, that the House Intelligence Committee would release a bill that reads more like an intelligence agency wishlist,” Baumohl told Motherboard. “It is not a good look for your reform bill to do more to expand and entrench surveillance.”
Goitein explained that despite the fact that Section 702 was designed to target non-U.S. individuals, the new provision would mean an increase in surveillance on Americans, too.
“Because the government would be able to conduct so much more surveillance, there would also be more incidental collection of Americans’ communications,” Goitein said. “When the government is targeting foreigners overseas, it is inevitably sweeping in Americans communications as well, because Americans communicate with foreigners. Once you put that surveillance on steroids—which is what this provision would do—the government would be pulling in orders of magnitude more of Americans’ communications than it’s doing right now.”
Congress previously reauthorized the bill in 2013 and again in 2018. Its authorization is currently set to expire on December 31, and the need for warrantless surveillance reform drove the House committee to propose a set of changes. The new bill would extend it to 2031.
“We are proud to put forward this comprehensive, bipartisan legislation to reduce future abuses, increase accountability for non-compliance, and modernize the 702 program to most effectively meet our current intelligence needs,” said committee chairman Mike Turner and ranking member Jim Himes in a statement. “If enacted, this legislation would be the most extensive and transformative reforms to the FBI and FISA since the statute was first enacted.”
The committee’s statement on the matter does not note the revision around redefining service providers.
The House Judiciary Committee is sponsoring a second bill, known as the Protect Liberty and End Warrantless Surveillance Act, that would renew Section 702 without adding provisions that would increase surveillance. Both this and the Intelligence Committee’s bill will be voted on on Tuesday, with whichever achieves the most support going into effect.