As of this writing, the US Senate is debating whether to not only renew the US government’s spying powers under Section 702 of the Foreign Intelligence Surveillance Act (FISA), but whether to dramatically expand them. That’s because the House, in reauthorizing the powers that expired last week after a long battle, adopted language that broadens the definition of who can be forced to help the government snoop. That leaves the Senate as the last check on already controversial legislation that has just gotten more dangerous before it is signed into law by a president eager to exercise his power.
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Supervisory authorities without control
“The legislation passed by the House gives the government unchecked authority to order millions of Americans to spy for the government,” warns Sen. Ron Wyden (D–Ore.). “Under current law – section 702 of the Foreign Intelligence Surveillance Act – the government can order telephone companies and email and internet service providers to turn over communications. This bill greatly expands that power. It says the government can force cooperation, I quote, “any other service provider that has access to equipment that is or may be used to transmit or store wire or electronic communications.”
The problem, privacy advocates point out, is that even before the House of Representatives debated provisions of the Reforming Intelligence and Securing America Act (RISAA), rejecting (in the event of a tie vote) the requirement that government agents obtain a warrant Before searching documents about Americans, and ultimately deciding on a two-year renewal of surveillance powers, members of the House Intelligence Committee inserted new and troubling language.
Their intention, according to Charlie Savage of The New York Times, was to make clear that cloud computing data centers must collaborate with government spies. But they didn’t limit themselves to this in their changes to the text. As Wyden points out, the bill now applies broadly to service providers with access to communications equipment. After much protest, exceptions were made for hotels, restaurants, homes and community centers. But everyone else is subject to the law.
Everyone is a spy
“A huge range of businesses would still be fair game,” protests a coalition of privacy, civil liberties and civil rights groups in a letter to Senate leadership from both parties, “including grocery stores, large warehouses, hardware stores, laundromats, barber shops, fitness centers and, perhaps most disturbingly, commercial property owners who rent the office spaces where tens of millions of Americans go to work every day, including transportation headquarters information agencies, political campaign offices, advocacy and grassroots organizations, lobbying firms, and lawyers’ offices.”
The coalition, which includes groups with widely varying political views, refers to this language as the “Everyone is a spy” provision, as potentially anyone with access to a laptop or WiFi router could be forced to help the government conduct surveillance. Given the breadth of the word access can be defined, which could also include cable installers, repairmen and house cleaners.
“If this becomes law, millions of American small business owners would have a legal obligation to hand over data flowing through their equipment,” warn former Rep. Bob Goodlatte (R-Va.) and former Sen. Mark Udall ( D-Colo .), both now with the Privacy and Surveillance Accountability Project. “And when they are done playing their part in mass surveillance, these small businesses will be placed under a gag order to hide their activities from their customers.”
The reauthorization of Section 702 of the RISAA is pending in the Senate, although the White House is pushing lawmakers “to quickly pass this bill before the authority expires on April 19,” so abuses of the new language are hypothetical. But it is a fact that the law’s existing surveillance power, without the expanded scope of the “Everyone’s a spy” provision, has already been misused against large numbers of Americans.
Abuse of surveillance pursuant to current legislation
In 2023, the House Judiciary Committee held two hearings to examine “the FBI’s abuse of Foreign Intelligence Surveillance Act (FISA) authorities.” Declassified documents hinted at abuses of surveillance power, including FBI spying on a U.S. senator, a state legislator and a judge.
According to a report published last September by the Federal Privacy and Civil Liberties Authority, “Section 702 poses significant privacy and civil liberties risks, particularly due to queries of US subjects and batch queries” in which Multiple search terms are run through the system as part of a single action. Civil Liberties Oversight Board (PCLOB). That report revealed that around three million queries were run on Americans in 2021 alone.
“Significant risks to privacy and civil liberties also include the scope of permissible targeting,” the PCLOB review adds.
If the scope of allowed targeting is Already risky, expanding the law’s language to compel the cooperation of “any other service provider that has access to equipment that is or may be used to transmit or store wire or electronic communications” would appear to significantly increase the risks.
The government itself is a threat
“No democracy should give its government the Orwellian power contained in the House bill,” warns Elizabeth Goitein of the Brennan Center for Justice at NYU Law. “The Senate must take the time to resolve this problem, or our democracy will pay the price.”
Fortunately, Ron Wyden isn’t the only skeptic in the Senate when it comes to Section 702 and domestic surveillance. Sen. Rand Paul (R-Ky.) opposed the law’s expansion even before its language was expanded to include the “Everyone’s a spy” provision.
“By using the 702, the contents and metadata of Americans’ communications are inevitably swept up and stored in government databases without a warrant. Law enforcement then accesses Americans’ communications without a warrant,” Paul warned in December. “Those who make the lazy and predictable argument that government is the only shield against threats never fail to mention that government itself is often the threat.”
Civil libertarians were right about the dangers of Section 702 Before has been modified to apply to cable owners and installers. House hearings last year demonstrated that the law’s power has already been abused by government officials. There is no reason to believe that they will be more moderate in their snooping when the law is less so.