Skip links

Hugely expanded Section 702 surveillance powers set for US Senate vote

On Thursday the US Senate is expected to reauthorize the contentious warrantless surveillance powers conferred by Section 702 of the Foreign Intelligence Surveillance Act (FISA), and may even strengthen them with language that, according to US Senator Ron Wyden (D-OR), “will force a huge range of companies and individuals to spy for the government.”

Last Friday, the House of Representatives passed the Reforming Intelligence and Securing America Act (RISAA) [PDF], which would renew Section 702 of the Foreign Intelligence Surveillance Act, in a 273-147 vote.

FISA Section 702 allows American intelligence agencies to spy on phone calls, text messages and emails involving foreigners residing outside the USA who are believed to be a threat to national security or involved in serious crimes.

But if those electronic communications involve people living in America, so-called “US persons’” communications are also swept up into a database that the FBI, CIA, NSA and National Counterterrorism Center (NCTC) can query without obtaining a warrant.

Also last Friday, an amendment that would ban warrantless surveillance of US persons failed to pass on a split vote of 212-212. Another potentially more alarming provision in RISAA, however, made it through without much fanfare.

This one changes the definition of electronic communications service provider, which previously covered traditional phone, email and internet companies. The revision can be used to force “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications” to hand these communications over to the Feds, as well as “custodians” of these so-called service providers.

There is a key question here: who should be forced to help their government spy?

“We didn’t see the text of this amendment until Thursday, for a Friday vote,” Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union (ACLU) told The Register.

“The focus was on the warrant rule, which obviously was a big deal, but this got lost in the shuffle. Redefining the definition of electronic service communication provider doesn’t sound like a bad thing, but obviously is very broad in its reach.”

On Tuesday, during a Senate-floor debate on RISAA, Wyden urged his fellow Senators to reject expanding Section 702 surveillance powers.

Millions of ‘agents for Big Brother’

“There is a key question here: who should be forced to help their government spy? The legislation coming from the House gives the government unchecked authority to order millions of Americans to spy on behalf of the government,” Wyden said.

This includes “anyone with access to a server, a wire, a cable box, a Wi-Fi router, a phone, or a computer,” and “every office building in America [that] has data cables running through it,” Wyden added.

Office cleaning staff, building security guards, and others could be forced into serving as “an agent for Big Brother,” he continued. “For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night.”

Considering the massive abuses that already occur under Section 702’s existing surveillance authorities, digital privacy and civil liberties advocates including the Electronic Frontier Foundation and the ACLU aren’t happy with expanding the government’s snooping powers.

Big Tech doesn’t like this provision, either

Big Tech is also unhappy and on Tuesday its lobby group the Information Technology Industry Council (ITI) urged US Senators to cut this language from the proposal.

“Beyond the immediate impacts of sweeping a multitude of additional entities within FISA 702’s scope, we should also consider the wider impacts on the competitiveness of US technology companies and, potentially, trusted data flows with US allies,” said John Miller, ITI senior VP and general counsel.

“If large US companies who provide core services enabling data communications transmission, or storage – such as data centers, cloud, or managed security services – are suddenly compelled to assist with FISA surveillance, some of their customers will likely look to foreign competitors who they perceive will not similarly expose their or their customers’ data to government requests,” Miller added.

While the US Senate is expected to vote on RISAA on Thursday, key amendments like the warrant requirement and the expanded definition of electronic communications service provider may not be retained in the bill.

The White House has urged the Senate to “swiftly pass this bill before the authority expires on April 19.”

However, as The Register reported last week, even if the surveillance tool expires on Saturday, the FBI will be able to conduct searches of US persons until at least next year.

In another late-Friday move, the FISA Court on April 5 authorized a new one-year certification allowing the Justice Department to conduct surveillance under Section 702. ®