Getty Images | Yuichiro Chino
Congress passed and President Biden signed a reauthorization of Title VII of the Foreign Intelligence Surveillance Act (FISA), approving a bill that opponents say includes a “major expansion of warrantless surveillance” under Section 702 of FISA.
Over the weekend, the Reforming Intelligence and Securing America Act was approved by the Senate in a 60-34 vote. The yes votes included 30 Republicans, 28 Democrats, and two independents who caucus with Democrats. The bill, which was previously passed by the House and reauthorizes Section 702 of FISA for two years, was signed by President Biden on Saturday.
“Thousands and thousands of Americans could be forced into spying for the government by this new bill and with no warrant or direct court oversight whatsoever,” Sen. Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence, said on Friday. “Forcing ordinary Americans and small businesses to conduct secret, warrantless spying is what authoritarian countries do, not democracies.”
Wyden and Sen. Cynthia Lummis (R-Wyo.) led a bipartisan group of eight senators who submitted an amendment to reverse what Wyden’s office called “a major expansion of warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act that was included in the House-passed bill.” After the bill was approved by the Senate without the amendment, Wyden said it seemed “that senators were unwilling to send this bill back to the House, no matter how common-sense the amendment before them.”
Sen. Ted Cruz (R-Texas) said he voted against the reauthorization “because it failed to include the most important requirement to protect Americans’ civil rights: that law enforcement get a warrant before targeting a US citizen.”
Bill expands definition of service provider
The Wyden/Lummis amendment would have struck language that expands the definition of an electronic communication service provider to include, with some exceptions, any “service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.” The exceptions are for public accommodation facilities, dwellings, community facilities, and food service establishments.
“Instead of using the opportunity to curb warrantless surveillance of Americans’ private communications and protect the public’s privacy, Congress passed an expansive, unchecked surveillance authority,” Sen. Edward J. Markey (D-Mass.) said after the vote. “This FISA reauthorization legislation is a step backwards, doing nothing to address the extent to which the government conducts surveillance over its own citizens.”
Under the 2008 FISA Amendments Act, electronic communication service providers already included telecommunications carriers, providers of electronic communication services, providers of remote computing services, and “any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored.” These entities must provide the government with information, facilities, and assistance necessary to obtain communications.
The Brennan Center for Justice at New York University School of Law called the reauthorization “the largest expansion of domestic surveillance authority since the Patriot Act.”
“The bill, which would effectively grant the federal government access to the communications equipment of almost any business in the United States, is a gift to any president who may wish to spy on political enemies,” said Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program.