This article first appeared in The Hill.
Buried in a bill the House passed Friday is a provision that would create the largest expansion of government surveillance on U.S. soil since the Patriot Act. The potential for abuse of this new power, included in the House’s reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, is staggering.
To protect both our civil liberties and our democracy, it is vital that the Senate either remove this provision or vote against the bill.
Section 702 allows the National Security Agency to target almost any foreigner overseas and collect their electronic communications without a warrant. Although Americans can’t be targeted per se, their phone calls, emails and text messages are inevitably swept up in enormous volumes, for the simple reason that Americans communicate with people around the world. FBI agents use the data collected under Section 702 to access information about Americans that would otherwise require a warrant to obtain.
In recent years, there have been multiple revelations of government abuse of Section 702. FBI agents have conducted warrantless searches of Section 702-acquired data for the communications of Black Lives Matter protesters, members of Congress, journalists and — in one case — more than 19,000 donors to a congressional campaign. NSA officials have aimed searches at online dating prospects and potential tenants.
Section 702 is scheduled to expire on Friday unless renewed. Many members of Congress on both sides of the aisle have vowed not to reauthorize Section 702 without major reforms to prevent further abuses.
But last week, the White House and intelligence agencies pulled out all the stops to convince members to reject a requirement that the government obtain a warrant to search Section 702-acquired data for Americans’ communications — which they did, by the narrowest possible margin (212–212).
At the same time, the administration and its allies on the House Intelligence Committee were able to slip through a provision that will fundamentally alter the nature of government surveillance in this country. The provision dramatically expands the universe of entities that can be compelled to assist the government in conducting Section 702 surveillance.
Under current law, the government can compel “electronic communications service providers” that have direct access to our communications, such as Verizon, AT&T, Google or Microsoft, to provide assistance — generally by turning over the communications of targets identified by the government. Under the House-passed bill, the government can compel the assistance of individuals or companies that provide any service at all, as long as they have access to the equipment (for instance, servers, routers or cell towers) on which communications are transmitted.
What does that mean in practice? Almost any business that provides wifi to its customers could be conscripted into service. Although the provision has a few carveouts for places like libraries, restaurants and hotels, it would apply to countless other establishments: laundromats, barber shops, fitness centers, dentist’s offices and hardware stores, for instance. It would also include commercial landlords that lease the office space where tens of millions of Americans go to work every day.
Indeed, even house cleaners, repair persons and wifi or cable installers — service providers with access to laptops and routers in our homes — would fall within this provision. And they would be barred from telling anyone about the surveillance they helped conduct.
Moreover, unlike A&T or Microsoft, many of these people and businesses lack ability to isolate and turn over particular communications. They would likely be forced to give NSA personnel access to the relevant equipment. That, in turn, would give the NSA access to all the communications transmitted through or stored on the equipment, including purely domestic communications between and among Americans. The NSA would be on the “honor system” to pull out and retain only the communications of valid foreign targets.
According to reporting in the New York Times, the impetus for this provision was a court ruling that data centers for cloud computing cannot be compelled to assist the government. But rather than write a provision specific to data centers, the administration commissioned language that was deliberately “enigmatic,” to obscure the type of provider at issue.
The result is a provision that goes far beyond data centers and pulls in a vast swath of ordinary U.S. businesses — even “delivery personnel, cleaning contractors and utility providers,” as an expert advisor to the specialized court that oversees Section 702 surveillance has warned.
Sen. Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee with a history of issuing prescient warnings about surveillance overreach, describes the provision as “terrifying.” He is right. As the recent Section 702 violations make clear, surveillance authorities that lack sufficient safeguards are subject to abuse under any administration.
Imagine placing the power to use every commercial landlord as an NSA agent into the hands of a future president with autocratic ambitions. In such a scenario, the stakes would be not just our civil liberties, but also our very democracy.
The Senate must stop this train before it is too late. The White House and surveillance hawks on the intelligence committees will insist that the Senate pass the House’s bill; otherwise, Congress will likely miss Friday’s deadline to reauthorize Section 702.
But that deadline is illusory. Earlier this month, the administration obtained approval from the FISA Court to continue conducting Section 702 surveillance until April 2025. By the government’s own reading of the law, that approval would “grandfather” in Section 702 surveillance for a year even if Section 702 itself were to lapse.
A meaningless deadline is no reason for Congress to be rushed into creating a surveillance state. No democracy should give its government the Orwellian power contained in the House bill. The Senate must take the time it needs to get this right, or our democracy will pay the price.
Elizabeth Goitein is the senior director of the Liberty and National Security Program at the Brennan Center for Justice at NYU Law.
