'Shame': Bill Including Warrantless Spying Expansion Passes Senate, Becomes Law

The U.S. Senate voted early Saturday morning to reauthorize Section 702 of the Foreign Intelligence Surveillance Act for two years, including a "poison bill" amendment added by the U.S. House that critics and privacy advocates dubbed the "Make Everyone a Spy" provision.

The reauthorization, officially called the Reforming Intelligence and Securing America Act, passed the Senate 60-34 despite the more than 20,000 constituents who called opposing the measure, which the Brennan Center for Justice said would enable "the largest expansion of surveillance on U.S. soil since the Patriot Act." President Joe Biden then signed the bill into law later Saturday.

"It's over (for now)," Elizabeth Goitein, the co-director of the Brennan Center's liberty and national security program, said on social media. "A majority of senators caved to the fearmongering and bush league tactics of the administration and surveillance hawks in Congress, and they sold out Americans' civil liberties."

"There is no defense for putting a tool this dangerous in the hands of any president, and doing so is a historic mark of shame."

Section 702 is the provision that allows U.S. intelligence agencies to spy on non-U.S. citizens abroad without a warrant. Currently, they are able to do so by acquiring communications data from electronic communications service providers like Google, Verizon, and AT&T. The existing provision has already been widely abused and criticized, as the communications of U.S. citizens are often caught up in the searches.

However, an amendment added by Reps. Mike Turner (R-Ohio) and Jim Himes (D-Conn.) redefined electronic communications service providers to include any "service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications."

Former and current U.S. officials toldThe Washington Post that the new language was intended to apply to data cloud storage centers, but civil liberties advocates like Goitein warn it could be used to compel any business—such as a grocery store, gym, or laundry service—to allow the National Security Agency (NSA) to scoop up data from its phones or computers.

"The provision effectively grants the NSA access to the communications equipment of almost any U.S. business, plus huge numbers of organizations and individuals," Goitein wrote on social media early Saturday. "It's a gift to any president who may wish to spy on political enemies, journalists, ideological opponents, etc."

"It is nothing short of mind-boggling that 58 senators voted to keep this Orwellian power in the bill," Goitein wrote.

Privacy advocates also criticized how the vote was forced through, as the Biden administration and Senate leaders including Senate Majority Leader Chuck Schumer (D-N.Y.) and Chairman of the Senate Select Committee on Intelligence Mark Warner (D-Va.) had emphasized that Section 702 was set to expire on Friday and raised alarms about what would happen to national security if the Senate allowed this to happen. However, as The New York Times pointed out, a national security court ruled this month that the program could run for another year even if the law expired.

"The headlines of state-aligned media screech and crow about the nefarious designs of your fellow citizens and the necessity of foreign wars without end, but find few words for a crime against the Constitution."

"Senator Warner and the administration rammed this poison pill through the Senate by fearmongering and saying things that are simply false," Demand Progress policy director Sean Vitka said in a statement. "There is no defense for putting a tool this dangerous in the hands of any president, and doing so is a historic mark of shame."

Once Biden had signed the bill, Vitka added on social media: "Shame on the leaders who let House Intelligence veto reform in the darkness, and ram through terrifying surveillance expansions on the basis of outright lies. The Make Everyone A Spy provision will be abused, and history will know who to blame."

Goitein used similar language to condemn the vote.

"This is a shameful moment in the history of the United States Congress," she said on social media. "It's a shameful moment for this administration, as well. But ultimately, it's the American people who pay the price for this sort of thing. And sooner or later, we will."

NSA whistleblower Edward Snowden added, "America lost something important today, and hardly anyone heard. The headlines of state-aligned media screech and crow about the nefarious designs of your fellow citizens and the necessity of foreign wars without end, but find few words for a crime against the Constitution."

Schumer announced a deal late Friday to vote on a series of amendments to the bill clearing the way toward its passage, according toThe Hill. However, all five amendments that would have added greater privacy protections were voted down, The Washington Post reported.

"If the government wants to spy on the private comms of any American, they should be required to get approval from a judge, as the Founding Fathers intended."

These included an amendment from Sen. Richard Durbin (D-Ill.) to require a warrant and another from Sen. Ron Wyden (D-Ore.) to remove the House language expanding the entities who could be forced to spy, according to Roll Call. The amendments were rejected 42-50 and 34-58 respectively.

"Congress' intention when we passed FISA Section 702 was clear as could be—Section 702 is supposed to be used only for spying on foreigners abroad. Instead, sadly, it has enabled warrantless access to vast databases of Americans' private phone calls, text messages, and e-mails," Durbin posted on social media.

"I'm disappointed my narrow amendment to protect Americans while preserving Section 702 as a foreign intel tool wasn't agreed to," Durbin continued. "If the government wants to spy on the private comms of any American, they should be required to get approval from a judge, as the Founding Fathers intended."

Wyden said in a statement: "The Senate waited until the 11th hour to ram through renewal of warrantless surveillance in the dead of night. But I'm not giving up. The American people know that reform is possible and that they don't need to sacrifice their liberty to have security. It is clear from the votes on very popular amendments that senators were unwilling to send this bill back to the House, no matter how common-sense the amendment before them."

Wyden was not the only one who pledged to keep fighting government surveillance overreach.

Vitka praised Durbin and Wyden, as well as other legislative privacy advocates including Sens. Rand Paul (R-Ky.) and Mike Lee (R-Utah) and Reps. Pramila Jayapal (D-Wash.), Warren Davidson (R-Ohio), Zoe Lofgren (D-Calif.), Andy Biggs (R-Ariz.), Jerrold Nadler (D-N.Y.), and Jim Jordan (R-Ohio), saying the lawmakers had "built a formidable foundation from which we will all continue to fight for civil liberties."

Goitein also said the opposition of outspoken senators and concerned citizens were "silver linings."

"Because of the heat we were able to bring, we extracted some promises from the administration and the Senate intelligence committee chair. I do think they'll be forced to make SOME changes to mitigate the worst parts of the law, which they can do by including those changes in an upcoming must-pass vehicle, like the National Defense Authorization Act," she added.

The American Civil Liberties Union also responded to the vote on social media.

"Senators were aware of the threat this surveillance bill posed to our civil liberties and pushed it through anyway, promising they would attempt to address some of the most heinous expansions in the near future," the organization said. "We will do everything in our power to ensure these promises are kept."