Congress Is On Track to Pass a “Dramatic and Terrifying” Expansion of US Government Spy Powers

For the past four months, people in the United States have been on the verge of gaining significant protections against government spying. A key surveillance authority was fast approaching its deadline for reauthorization, as a bipartisan coalition became increasingly vocal in championing key privacy-protective reforms.Instead, the House of Representatives passed what Sen. Ron Wyden (D-OR) describes as “one of the most dramatic and terrifying expansions of government surveillance authority in history.” Now our hopes lie with his colleagues in the Senate, who need to mobilize to change the course of this bill as it moves rapidly toward a vote.

Section 702 of the Foreign Intelligence Surveillance Act, also called FISA 702 or just Section 702, is meant to enable the surveillance of non-Americans located outside of the US — already an immense category of potential targets. Proponents describe it as essential to US intelligence gathering abroad. But thanks to oversight disclosures, we also know that intelligence and law enforcement agencies have used Section 702 to unlawfully spy on people in the US, including protesters, sitting members of Congress, and a state judge who had reported suspected civil-rights violations by law enforcement to the FBI.

Despite widespread acknowledgement that meaningful change is needed to curb these abuses, high drama has plagued negotiations over proposed reforms. There was a last-minute rush to pass a short-term reauthorization (without reforms) before Congress’ winter break; some Valentine’s week fear-mongering about an unnamed but “serious national security threat” right as the House was heading toward another (ultimately canceled) reauthorization vote; and even false claims, last week, that warrantless surveillance could have prevented 9/11. These negotiations have also frequently been shrouded in secrecy.

Still, an unusual bipartisan coalition of House members, led by members of the Democrats’ Congressional Progressive Caucus and the GOP’s Freedom Caucus, continued to insist on serious reforms to the government’s surveillance powers. At the top of the list was requiring the government to get a warrant before searching US persons’ communications collected under Section 702, and prohibiting government agencies — including spy agencies and law enforcement alike — from circumventing Fourth Amendment safeguards by simply buying our personal data from third-party data brokers.

Then last week, the House of Representatives voted not only to extend Section 702 authority for two years but to expand it. An amendment that would have secured the warrant requirement failed on a tied 212-212 vote. Three intelligence committee amendments to expand 702 surveillance powers passed by more significant margins. One amendment would increase the warrantless surveillance of people applying for travel authorization to the US. Another would redefine “electronic communication service provider” to encompass a sweeping range of entities that have access to communications equipment as common as Wi-Fi routers, which the government could compel to assist in conducting surveillance under Section 702. (Recent New York Times reporting highlights frustrations over whether data centers fit under the existing definition of electronic communication service provider as a possible motivation for this amendment.)

The intelligence community and its congressional allies have worked hard to downplay the impacts of these expansive changes. At the same time, they’ve dismissed both the need for and the viability of new protections that members of the House Judiciary Committee and other lawmakers in both parties have championed. Opponents of the warrant requirement insist that there’s no need to worry about surveillance of people in the US because Section 702 surveillance is targeted only at “foreigners who are abroad,” while also insisting that such a requirement would be so burdensome as to be “devastating.” The claim that a surveillance authority simultaneously has a minimal domestic impact yet is also impossible to rein in is telling.

It’s difficult to have a robust public conversation about an authority like Section 702. There have been many closed-door hearings and briefings containing classified information — information that many members of Congress, let alone the wider public, are not able to review or assess, let alone challenge directly. This places advocates for expanded surveillance at a distinct advantage. If only you knew what we know.

But those who are able to peer behind the curtain have also raised the alarm about past abuses of this surveillance authority and the potential for future abuses under the expanded surveillance powers that just passed the House. Details surrounding widespread abuses of Section 702 authority, such as the warrantless surveillance of protesters and members of Congress, were revealed by the Privacy and Civil Liberties Oversight Board, an independent advisory body that has also emphasized the need for more robust safeguards. Just this week, attorney Marc Zwillinger, an outside expert appointed to assist the FISA Court, echoed the concerns of civil liberties groups regarding the amendment to expand the definition of electronic communication service provider under Section 702, telling Rolling Stone:

Under the new language, if the government cannot get what they want by going to your email provider or telecommunications provider, they could go to the landlord of your building, where your office is, and say, I know that people in these offices sometimes talk to someone foreign that we are targeting, please give us access to the communication infrastructure in your building where Rolling Stone’s outgoing communications might be found.

Sen. Wyden, a member of the Senate Select Committee on Intelligence, recently took to the Senate floor to argue that there is “no justification for this vast expansion of surveillance authorities.” Wyden added: “I would say respectfully that anyone who votes to give the government vast powers under the premise that intelligence agencies won’t actually use it is being shockingly naïve.”

The senator is right. In the throes of a contentious election year, there are particularly clear risks in expanding a government surveillance authority that has been abused to surveil protesters, immigrants, political candidates, and even journalists. The Senate now has the chance to step up where the House failed — to reject the House’s expansion of Section 702 and insist on common-sense reforms that have been on the table for months before supporting any measure that would reauthorize this controversial surveillance authority. The privacy rights and civil liberties of every person in the United States depend on it.