Tech companies and First Amendment groups are calling attention to a provision in a domestic espionage bill that they say would significantly expand the federal government’s power to snoop on Americans’ digital communications, potentially coercing employees of private companies to become whistleblowers.
The Information Technology Industry Council (ITI), a global trade group representing major technology companies including Google and Microsoft, is calling for last-minute changes to the Reforming Intelligence and Securing America Act (RISAA), which could get a final vote in Parliament Senate on Friday. The bill’s primary purpose is to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows U.S. intelligence agencies to intercept communications between Americans and individuals abroad.
But the bill also includes a provision that “significantly expands the U.S. government’s warrantless surveillance capabilities, harming the competitiveness of American technology companies large and small, and likely endangering the continued free global flow of data between the U.S. and its allies,” the ITI said. in a statement this week.
AS Reason reported in December, that provision means that nearly any company or entity with access to telecommunications or internet equipment could be forced to participate in the federal government’s digital espionage regime. The big goal, how Wired noted this week, it will likely be data center owners and operators.
Under current FISA law, Section 702 applies only to telecommunications companies and Internet service providers. But the amendment included in the RISAA would expand that definition to cover “any service provider” with “access to equipment that is or may be used to transmit or store” electronic communications.
“The practical impact of the revised definition is significant and means that any company, supplier or any of its employees that touches the physical infrastructure of the Internet could now be included within the scope of FISA and required to assist in FISA surveillance” , warns the ITI. “Should this amendment become law, any provider of electronic communications service equipment or others with access to such equipment, including their employees or the employees of their service providers, would be subject to disclosure or enforcement enforcement by FISA.”
In short, even someone like a custodian could be legally obligated to cooperate in the federal government’s spying efforts.
Marc Zwillinger, a lawyer who has experience arguing before the Foreign Intelligence Surveillance Court (FISC), wrote on his personal blog this week that the RISAA “would allow the government to request assistance from a wide range of additional entities and persons in conducting surveillance under FISA Rule 702.”
The most recent version is less broad than the one initially proposed in December: for example, gathering places such as hotels and coffee shops were specifically excluded from the law. But, as Zwillinger writes, the revised definition would cover “owners and operators of facilities that house equipment used to store or transport data, such as data centers and buildings owned by commercial landlords, who simply have access to communications equipment in their space physicist”. ,” as well as “other persons with access to such facilities and equipment, including delivery personnel, cleaning contractors and utility providers.”
Because newsrooms and other places where journalists work are not specifically exempt, some First Amendment groups are also concerned about how expanding digital spying authority could affect journalism.
“This bill would essentially allow the government to establish a spy project,” Seth Stern, director of Freedom of the Press Defense (FPF), said in a statement Thursday. “If this bill were to become law, sources would rightly suspect that American newsrooms are being bugged by the government. And journalists will not be able to reassure them that they are not, because, as far as they know, the maintenance worker buildings is an inadvertent government spy.”
The reactions from tech companies, legal experts and press freedom advocates come in the wake of objections raised by various civil libertarian groups. AS ReasonJ.D. Tuccille spoke about earlier this week, some opponents of the FISA reauthorization bill have started calling it “the ‘Everyone’s a spy’ provision, since potentially anyone with access to a laptop or WiFi router could be forced to aid the conduct of government surveillance.”
If the RISAA is passed by the Senate on Friday, as expected, and signed by President Joe Biden, Americans will have no choice but to hope that the Justice Department is telling the truth when it says it will not use the broad authority contained in the bill. In a letter to senators on Thursday, Attorney General Merrick Garland wrote that his department is “committed to applying” the new definition of electronic communications service providers in a limited way. “The number of technology companies” covered by the new provision, he wrote, “is extremely small.”
Of course, anyone with a working knowledge of the history of federal surveillance programs – or any government initiative, for that matter – is probably right to be skeptical of such assurance.
“Even if the bill is intended to target data centers, it doesn’t say so,” Stern said in a statement. “And, while the Biden administration is trusted to keep its promises, they are not binding on any future administration.”