The U.S. House of Representatives has postponed voting on two contentious surveillance bills that sought to reform and reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA).
The bills, under scrutiny for potential abuse and expansive definitions, faced strong opposition from rights groups and privacy advocates.
One bill, in particular, buried within the House Intelligence Committee’s Section 702 "reform" bill, triggered alarm as it was dubbed the most significant expansion of surveillance in the United States since the Patriot Act.
Elizabeth Goitein, Senior Director of the Brennan Center for Justice’s Liberty & National Security Program, claims the bill, disguised as a reform measure, would significantly expand surveillance capabilities within the United States.
Gotein raised the red flag in a tweet that garnered over 8.8 million views.
“RED ALERT: Buried in the House intelligence committee’s Section 702 ‘reform’ bill, which is schedule for a floor vote as soon as tomorrow, is the biggest expansion of surveillance inside the United States since the Patriot Act. 1/11,” Goitein said on X.
The provision in question appears innocuous on the surface, altering a definition, but it could empower the government to enlist any entity or person with access to communication equipment for surveillance assistance.
This expansion extends to everyday businesses like hotels, libraries, and coffee shops, potentially transforming them into involuntary surveillance agents. Businesses offering Wi-Fi services could be required to configure their systems to grant the government access to entire communication streams.
Goitein argues the possible expansion could pose a risk to privacy, as businesses that lack the technical capabilities to store communications might inadvertently provide the government with access to vast amounts of data.
“What it does in practice is just massively expand the universe of companies that can be forced to assist the government in conducting surveillance,” she told Legal Newsline. “So right now, it's companies that have access to our communications companies, like cell phone service providers or email service providers, and they have to basically just turn over the the communications of of targets of Section 702 surveillance to the government. But under this bill, any entity or person that has access to equipment on which communications are transmitted or stored can be required to be drafted into service.”
More concerns include the government's technical ability to limit surveillance to authorized targets and the potential for abuse, given past instances of overreach, she said.
“These ordinary businesses that we, you know, that we patronize every day are going to become whether they want to or not, the eyes and ears of the government. And then the government is going to have direct access to just vast streams of data that it would not otherwise have access to,” Goitein said.
Section 504, as described by Goitein, has prompted backlash, with critics arguing that the administration's reassurances about intent are insufficient, especially when the actual impact of the law is not publicly disclosed due to its classified nature.
Goitein further sheds light on the controversial practice of upstream surveillance, where the government taps into and scans all communications flowing across networks.
Legal challenges against such practices have faced roadblocks, with the government often citing state secrets privilege and standing issues, preventing a substantive examination of the constitutionality of these surveillance methods.
Recent instances of warrantless searches of members of Congress, Black Lives Matter protesters, and others have intensified the debate over the need for surveillance reform.
U.S. Rep. Darin LaHood (R-Ill.) made waves after noting his name was improperly subjected to Section 702 queries.
Goitein asserts that abuses under Section 702 have been widespread, with even the FISA court acknowledging persistent violations of rules.
“Intelligence Committees are surveillance hawks,” she said. “That has always been the case. They they they are they do the intelligence community's bidding for the most part, with some notable historic exceptions. But in general, you can pretty much expect that if the intelligence community wants something, they'll try to give it to them.
“And so that's what we're seeing here, is sort of this conflict between the House Intelligence bill, which is, as I said, a massive expansion of surveillance. But if you take that provision out of the bill, what you would be left with is just a ringing endorsement of the status quo without any and without any changes that would in any way address any of the problems we've seen so far.”
The House Judiciary Committee has presented an alternative bill that starkly contrasts the House Intelligence Committee's proposal. It calls for a warrant requirement before searching communications obtained under Section 702 for information on Americans, offering additional protections against potential abuses.
“(It) is sort of the opposite of the House Intelligence Committee bill,” Goitein said. “It would require the government to obtain a warrant before searching communications obtained under Section 702 for Americans, information on Americans' phone calls and text messages and emails. And that's as it should be.”
The bill also addresses the data broker loophole, aiming to prevent the government from evading privacy protections by purchasing sensitive information from data brokers.
According to Vice News, the vote was postponed after a dramatic showdown, and the House is expected to vote on the National Defense Authorization Act on Thursday to temporarily extend FISA Section 702’s authorization to April 19.
The bills would expand one of the government’s most powerful mass surveillance tools, allowing the U.S. government to compel domestic communications companies to assist in surveilling non-U.S. individuals outside the country.
The bills faced backlash from rights groups and privacy experts due to concerns about potential abuse and an expansive definition of "electronic communication service provider."
The Center for Democracy & Technology recently detailed the FBI's repeated misuse of FISA Section 702 despite internal reforms, intensifying doubts about the proposed procedural changes.
“The FBI conducted an estimated 8,000 noncompliant US person queries in 2022. Improper US person queries in recent years have focused on Black Lives Matter protesters, thousands of political donors, journalists, a local political party, and a Member of Congress,” according to the Center for Democracy & Technology.
The Center for Democracy & Technology noted a cycle of promises, internal adjustments, and continued misuse prompted calls for external review and judicial assessment to prevent further abuses of Section 702.
“The FBI and DOJ have repeatedly said that misuse of the FBI’s power to query Section 702 data can be addressed with internal reforms, such as training, re-training, higher levels of required approval and changes to minimization procedures. These reforms have repeatedly failed to deliver the protections promised,” the Center for Democracy & Technology reported.