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foreign intelligence surveillance act
'Shame': Bill Including Warrantless Spying Expansion Passes Senate, Becomes Law
"The Make Everyone A Spy provision will be abused, and history will know who to blame," one civil liberties advocate said.
Apr 20, 2024
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."
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Amid Spying Fight, House Passes Fourth Amendment Is Not For Sale Act
"As FANFSA and the 702 reauthorization move to the Senate, lawmakers in that chamber need to take a stand for the rights of people in the United States," said one advocate.
Apr 17, 2024
While applauding the U.S. House of Representatives' bipartisan passage of a bill to ensure that "law enforcement and intelligence agencies can't do an end-run around the Constitution by buying information from data brokers" on Wednesday, privacy advocates highlighted that Congress is trying to extend and expand a long-abused government spying program.
The House voted 219-199 for Fourth Amendment Is Not For Sale Act (FANFSA), which won support from 96 Democrats and 123 Republicans, including the lead sponsor, Rep. Warren Davidson (R-Ohio). Named for the constitutional amendment that protects against unreasonable searches and seizures, H.R. 4639 would close what campaigners call the data broker loophole.
"The privacy violations that flow from law enforcement entities circumventing the Fourth Amendment undermine civil liberties, free expression, and our ability to control what happens to our data," said Free Press Action policy counsel Jenna Ruddock. "These impacts affect everyone who uses digital platforms that extract our personal information any time we open a browser or visit social media and other websites—even when we go to events like demonstrations and other places with our phones revealing our locations."
"We're grateful that the House passed these vital and popular protections," she added. "The bill would prevent flagrant abuses of our privacy by government authorities in league with unscrupulous third-party data brokers. Making this legislation into law with Senate passage too would be a decisive and long-overdue action against government misuse of this clandestine business sector that traffics in our personal data for profit."
Wednesday's vote followed the House sending the Reforming Intelligence and Securing America Act to the Senate. H.R. 7888 would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for warrantless spying on noncitizens abroad but also sweeps up Americans' data.
The House notably included an amendment forcing a wide range of individuals and businesses to cooperate with government spying operations but rejected an amendment that would have added a warrant requirement to the bill, which the Senate could vote on as soon as Thursday.
Noting those decisions on the FISA reauthorization legislation, Ruddock stressed that "today's vote is a victory but follows a recent loss and ongoing threat as that Section 702 bill moves to the Senate this week too."
"As FANFSA and the 702 reauthorization move to the Senate, lawmakers in that chamber need to take a stand for the rights of people in the United States," she argued. "That means passing FANFSA and reforming Section 702 authority—and prioritizing everyone's First and Fourth Amendment rights."
Jeramie Scott, senior counsel and director of the Electronic Privacy Information Center's Project on Surveillance Oversight, also praised the House's FANFSA passage on Wednesday.
"The passage of the Fourth Amendment Is Not For Sale underscores the extent to which reining in abusive warrantless surveillance is a bipartisan issue," Scott said. "We urge the Senate to take up this measure and close the data broker loophole."
Kia Hamadanchy, senior policy counsel at ACLU, similarly said Wednesday that "the bipartisan passage of this bill is a flashing warning sign to the government that if it wants our data, it must get a warrant."
Hamadanchy added that "we hope this vote puts a fire under the Senate to protect their constituents and rein in the government's warrantless surveillance of Americans, once and for all."
Sen. Ron Wyden (D-Ore.), a critic of the pending 702 bill and FANFSA's lead sponsor in the upper chamber, called the the House's Wednesday vote "a huge win for privacy" and said that "now it's time for the Senate to follow suit."
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Rights Groups Cheer Senate Bill to Curb Warrantless Spying on Americans
The SAFE Act "would make critical reforms to stop persistent abuse" and is "meticulously designed to account for operational needs," said one advocate.
Mar 14, 2024
Just weeks away from the expiration of a U.S. government surveillance power with a history of abuse, a bipartisan group of senators unveiled a reauthorization bill welcomed by rights groups who have long demanded reforms.
Congress and U.S. President Joe Biden last year temporarily extended Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits warrantless surveillance targeting noncitizens located outside the United States, to allow for ongoing discussions of possible changes opposed by the intelligence community and its allies on Capitol Hill.
"There is little doubt that Section 702 is a valuable national security tool. However, while only foreigners overseas may be targeted, the program sweeps in massive amounts of Americans' communications, which may be searched without a warrant," Senate Majority Whip Dick Durbin (D-Ill.) noted Thursday.
Durbin, who also chairs the Senate Judiciary Committee, and Sen. Mike Lee (R-Utah) are leading the Security and Freedom Enhancement (SAFE) Act with support from 11 other senators who have backed reform efforts in response to rampant abuse, particularly by the Federal Bureau of Investigation (FBI).
"The documented abuses under FISA should provoke outrage from anyone who values the Fourth Amendment rights of American citizens," said Lee. "From warrantless searches targeting journalists, political commentators, and campaign donors to monitoring sitting members of Congress, these actions reveal a blatant disregard for individual liberties."
After noting that "even after implementing compliance measures, the FBI still conducted more than 200,000 warrantless searches of Americans' communications in just one year—more than 500 warrantless searches per day," Durbin framed the SAFE Act as "a sensible, bipartisan path forward on reauthorizing Section 702 with meaningful reforms."
With the April 19 sunset of Section 702 of the Foreign Intelligence Surveillance Act approaching, I'm announcing a bipartisan compromise bill that protects Americans from foreign threats and from warrantless government surveillance. WATCH: https://t.co/3ELLO7O7YN
— Senator Dick Durbin (@SenatorDurbin) March 14, 2024
Specifically, the bill would require agencies to "obtain a FISA Title I order or a warrant before accessing the contents of Americans' communications collected under Section 702—but not before running queries," the sponsors explained. It also includes additional layers of internal supervision for queries involving Americans and would close the data broker loophole, among other provisions.
"Sen. Durbin and Lee have carefully crafted a bipartisan compromise bill," said ACLU senior policy counsel Kia Hamadanchy. "While this legislation does not include every reform civil liberties groups have been pushing for, it does include meaningful changes that will rein in the government's warrantless surveillance of Americans and help ensure that our privacy is protected. The Senate should take up this bill immediately."
Demand Progress policy director Sean Vitka agreed. While also noting that it doesn't have everything rights advocates wanted, he said that "the SAFE Act is a major development in the ongoing fight to rein in warrantless government surveillance of people in the United States."
"We commend Sen. Durbin and Lee for their leadership," Vitka added, stressing that "an overwhelming number of Americans from across the political spectrum want Congress to seize this once-in-a-generation moment and get this done."
Jeramie Scott, senior counsel and director of the Electronic Privacy Information Center's Project on Surveillance Oversight, similarly praised the pair for crafting the bill, which he said "takes a pragmatic, measured approach to reform that draws upon a wide range of proposals" to offer "a clear path forward to reauthorizing Section 702 while ensuring that our rights are protected."
Jake Laperruque, deputy director of the Center for Democracy & Technology's Security and Surveillance Project, also celebrated that the bill "would make critical reforms to stop persistent abuse" and is "meticulously designed to account for operational needs."
"We're just a few weeks away from the expiration of FISA 702—it's time for congressional leadership to stop stalling and allow a vote on these critical reforms," Laperruque declared.
The SAFE Act comes just days after Wiredrevealed that U.S. House Permanent Select Committee on Intelligence Chair Mike Turner (R-Ohio) privately tried using peaceful protests at the home of Senate Majority Leader Chuck Schumer (D-N.Y.) as proof of the need to block long-demanded reforms to Section 702.
Turner notably already faced calls to resign after he announced that his panel had provided members of Congress with "information concerning a serious national security threat," which news outlets reported was that Russia has made progress on a space-based nuclear weapon to target U.S. satellites.
Amid that controversy—which was widely seen as a ploy to force the reauthorization without reforms—House Speaker Mike Johnson (R-La.) abruptly delayed action on Section 702 in February. However, the Republican leader toldPolitico on Thursday that "the current plan is to run FISA as a standalone the week after Easter."
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