Section 702 Surveillance Authority Expanded, More Dangerous (Opinion)

At press time (4/19/24), the U.S. Senate is debating whether to not only renew the U.S. government’s spying powers under Section 702 of the Foreign Intelligence Surveillance Act (FISA) but dramatically expand them. That’s because the House, in reauthorizing the expiring powers last week after an extended battle, adopted language that broadens the definition of those who can be forced to help the government snoop. That leaves the Senate as the last check on already controversial legislation that just became more dangerous before it’s signed by a president eager to exercise its power.

Section 702: Unchecked Surveillance Authority

“The legislation coming from the House gives the government unchecked authority to order millions of Americans to spy on behalf of the government,” warns Sen. Ron Wyden (D–Ore.). “Under current law—section 702 of the Foreign Intelligence Surveillance Act—the government can order the telephone companies and email and internet service providers to hand over communications. This bill expands that power dramatically. It says that the government can force cooperation from, quote, ‘any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.'”

The problem, point out privacy advocates, is that even before the House of Representatives debated the provisions of the Reforming Intelligence and Securing America Act (RISAA)—rejecting (on a tie vote) a requirement that government agents get a warrant before searching records about Americans, and ultimately settling 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 clarify that cloud-computing data centers must cooperate with government spooks. But that’s not what they confined themselves to in their changes to the text. As Wyden emphasizes, the bill now broadly applies to service providers with access to communication equipment. After much protest, exceptions were written in for hotels, restaurants, dwellings, and community centers. But everybody else is subject to the law.

Everyone Is a Spy

“An enormous 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, department stores, hardware stores, laundromats, barber shops, fitness centers, and—perhaps most disturbingly—commercial landlords that rent out the office space where tens of millions of Americans go to work every day, including news media headquarters, political campaign offices, advocacy and grassroots organizations, lobbying firms, and law offices.”

The coalition, which includes groups of widely varying political views, refers to this language as the “Everyone Is a Spy” provision, since potentially anybody with access to a laptop or WiFi router could be compelled to help the government conduct surveillance. Given how broadly the word access can be defined, that might even include cable installers, repairmen, and house cleaners.

“If this became law, millions of American small business owners would have a legal obligation to hand over data that runs through their equipment,” caution former Rep. Bob Goodlatte (R–Va.) and former Sen. Mark Udall (D–Colo.), both now with the Project for Privacy and Surveillance Accountability. “And when they’re done with doing their part in mass surveillance, these small businesses would then be placed under a gag order to hide their activities from their customers.”

RISAA’s Section 702 reauthorization is pending in the Senate, though the White House is pushing lawmakers “to swiftly pass this bill before the authority expires on April 19,” so abuses of the new language are hypothetical. But it’s a fact that the law’s existing surveillance power, without the broadened scope of the “Everyone Is a Spy” provision, has already been misused against a great many Americans.

Section 702 Surveillance Abuse Under Existing Law

In 2023, the House Judiciary Committee held two hearings to examine “the FBI’s abuses of its Foreign Intelligence Surveillance Act (FISA) authorities.” Declassified documents offered glimpses of misuses of surveillance power including FBI spying on a U.S. senator, a state lawmaker, and a judge.

“Section 702 poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries” in which multiple search terms are run through the system as part of a single action, according to a report published last September by the federal Privacy and Civil Liberties Oversight Board (PCLOB). That report revealed that roughly three million queries on Americans were run just in 2021.

“Significant privacy and civil liberties risks also include the scope of permissible targeting,” added the PCLOB review.

If the scope of permissible targeting is already risky, expanding the law’s language to compel cooperation from “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications” would seem to dramatically compound the risks.

Government Itself Is a Threat

“No democracy should give its government the Orwellian power contained in the House bill,” cautions Elizabeth Goitein of the Brennan Center for Justice at NYU Law. “The Senate must take the time it needs to get this right, or our democracy will pay the price.”

Fortunately, Ron Wyden isn’t the Senate’s only skeptic when it comes to Section 702 and domestic surveillance. Sen. Rand Paul (R–Ky.) opposed extending the law even before its language was broadened to include the “Everyone Is a Spy” provision.

“Using 702, Americans’ communications content and metadata is inevitably swept up and kept in government databases without a warrant. Law enforcement agencies then access Americans’ communications without a warrant,” Paul warned in December. “Those who make the lazy and predictable argument that government is your only shield from threats always fail to mention that government itself often is the threat.”

Civil libertarians were right about the dangers of Section 702 before it was amended to apply to landlords and cable installers. Last year’s House hearings demonstrated that the law’s power has already been abused by government officials. There’s no reason to believe they’ll be more restrained in their snooping when the law is less so.

Originally published by the Reason Foundation. Republished with permission.

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