Senators on both sides of the aisle are banding together to try and kill a House-passed addition to the bill reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA) that they argue would force more businesses to aid in government surveillance of foreigners.
An amendment from Sen. Ron Wyden (D-Ore.) and others would strike from the bill a House provision that redefines what types of communications companies would have to comply with the law.
The House amendment from Intelligence Committee Chair Mike Turner (R-Ohio) was intended to address a mysterious battle by the government to get one unnamed communications company to aid in overseas surveillance, with the Foreign Intelligence Surveillance Court (FISC) determining a change in law was the only way to force compliance.
A one-pager from House Intelligence Democrats said the measure is “designed to respond to a very specific (and classified) fact pattern.”
But opponents argue the provision was written far too broadly and risks sweeping in a number of businesses.
“The administration says it’s going after a narrower set of companies, but they can’t talk about it because it’s all secret. That’s not how laws, especially surveillance authorities, should be written,” Wyden, a member of the Senate Intelligence Committee, said on the Senate floor Friday morning.
“Jamming through a last minute provision that dramatically expands surveillance authorities in a way that could affect almost any American is the height of irresponsibility.”
The provision of the bill shifts the definition of electronic communications service providers, but notes that restaurants, hotels and businesses that serve the public would not be required to comply with Section 702 surveillance.
“The exceptions in the provision are designed to cover every concern that has been raised. It carves out any type of food service, any type of public accommodation, every type of dwelling — homes, apartment buildings — every type of community facility, from libraries to hospitals, to recreational facilities and day care centers,” a senior Justice Department official previously told The Hill.
“Claims that this is a broad expansion of the authority are just incorrect.”
But Wyden argued Friday that even if those businesses were exempt, those who supply communications equipment or services for them may not be.
“Under this provision, landlords, the companies that maintain the cables and wifi, and any number of companies whose employees have access to any of that equipment can all be forced to cooperate with the government’s surveillance,” Wyden said.
Tensions over the provision were on display Thursday when the Justice Department distributed a letter previously only sent to Senate Intelligence leaders seeking to allay fears about the House amendment — likewise making a commitment to only use it narrowly.
“The Department commits to applying this definition of ECSP exclusively to cover the type of service provider at issue in the litigation before the FISC—that is, technology companies that provide the service the FISC concluded fell outside the current definition,” Carlos Uriarte, head of legislative affairs for the Justice Department, wrote in the letter, adding it would disclose the company in a classified appendix.
“To protect sensitive sources and methods, the ECSP provision in H.R. 7888 was drafted to avoid unnecessarily alerting foreign adversaries to sensitive collection techniques.”
To Wyden, that was a tacit admission the measure was not narrowly written enough to prevent abuse.
“The DOJ letter does not deny that the provision authorizes the government to force a broad set of Americans and American companies to assist with warrantless surveillance under Section 702. In fact, DOJ basically concedes this fact by promising that it will only apply the new authorities to certain companies on a secret list,” Wyden said.
“That commitment is worth exactly nothing. It is not even binding on this administration. And it certainly isn’t binding on the next administration.”
Wyden was joined by conservatives like Sens. Cynthia Lummis (R-Wyo.) and Mike Lee (R-Utah) in sponsoring the amendment.
Section 702 of FISA expires at midnight, and any change to the bill would require it to be sent back to the House.
