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'Call Your Senator Now': Privacy Advocates Ramp Up Effort to Stop Spying Expansion
"Make no mistake," said one expert, "the day will come when there is a president in the White House who will not hesitate to make full use of the Orwellian power this bill provides."
Apr 16, 2024
With the U.S. Senate poised to vote later this week on legislation to reauthorize a heavily abused warrantless surveillance authority, privacy advocates are ramping up pressure on lawmakers to remove a provision that would force a wide range of businesses and individuals to take part in government spying operations.
Dubbed the "Make Everyone a Spy" provision by one advocacy group, the language was tucked into a House-passed bill that would extend Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows U.S. agencies to spy on non-citizens located outside of the country without a warrant. Americans' communications have frequently been collected under the spying authority.
The provision that has sparked grave warnings from privacy advocates was spearheaded by the chair of the House Permanent Select Committee on Intelligence, Rep. Mike Turner (R-Ohio), and the panel's ranking member, Rep. Jim Himes (D-Conn.).
While supporters of the provision, including the Biden White House, claim the proposed change to existing law is narrow, civil liberties defenders say it's anything but.
Currently, U.S. agencies can use Section 702 authority to collect the data of non-citizens abroad from electronic communications service providers such as Google, Verizon, and AT&T without a warrant.
The Turner-Himes amendment would significantly expand who could be ordered to cooperate with government surveillance efforts, broadening Section 702 language to encompass "any other service provider who has access to equipment that is being or may be used" to transmit or store electronic communications.
That change, privacy advocates say, would mean grocery stores, laundromats, gyms, barber shops, and other businesses would potentially be conscripted to serve as government spies.
"The Make Everyone a Spy provision is recklessly broad and a threat to democracy itself," Sean Vitka, policy director of Demand Progress, said in a statement Tuesday. "It is simply stunning that the administration and House Intelligence Committee do not have a single answer for how frighteningly broad this provision is."
"You can't create a surveillance state and just hope the government won't take advantage."
The New York Timesexplained Tuesday that after the FISA Court "approves the government's annual requests seeking to renew the program and setting rules for it, the administration sends directives to 'electronic communications service providers' that require them to participate."
In 2022, the Times noted, the FISA Court "sided with an unidentified company that had objected to being compelled to participate in the program because it believed one of its services did not fit the necessary criteria." Unnamed people familiar with the matter told the newspaper that "the judges found that a data center service does not fit the legal definition of an 'electronic communications service provider'"—prompting the bipartisan effort to expand the reach of Section 702.
"While the Department of Justice wants us to believe that this is simply about addressing data centers, that is no justification for exposing cleaning crews, security guards, and untold scores of other Americans to secret Section 702 directives, which are issued without any court review," Vitka said Tuesday. "Receiving one can be a life-changing event, and Jim Himes appears not to have any sense of that. The Senate must stop this provision from advancing."
Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, wrote on social media Tuesday that "it's critical to stop this bill."
"The administration claims it has no intent to use this provision so broadly—and who knows, maybe it doesn't. But the plain language of the bill allows involuntary conscription of much of the private sector for [National Security Agency] surveillance purposes," Goitein wrote. "Make no mistake, the day will come when there is a president in the White House who will not hesitate to make full use of the Orwellian power this bill provides. You can't create a surveillance state and just hope the government won't take advantage."
URGENT: Please read thread below. We have just days to convince the Senate NOT to pass a “terrifying” law (@RonWyden) that will force U.S. businesses to serve as NSA spies. CALL YOUR SENATOR NOW using this call tool (click below or call 202-899-8938). 1/25 https://t.co/HAOHURZoJQ
— Elizabeth Goitein (@LizaGoitein) April 15, 2024
With Section 702 set to expire Friday, Senate Majority Leader Chuck Schumer (D-N.Y.) said in a floor speech Tuesday that he has placed the House-passed FISA legislation on the chamber's calendar and will soon "file cloture on the motion to proceed" to the bill, which is titled the Reforming Intelligence and Securing America Act (RISAA).
"We don't have much time to act," said Schumer. "Democrats and Republicans are going to have to work together to meet the April 19th deadline. If we don't cooperate, FISA will expire, so we must be ready to cooperate."
Sen. Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence and outspoken privacy advocate, has called RISAA's proposed expansion of government surveillance "terrifying" and warned it would "force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government's behalf."
According to the Times, Wyden's office has in recent days been circulating "a warning that the provision could be used to conscript someone with access to a journalist's laptop to extract communications between that journalist and a hypothetical foreign source who was targeted for intelligence."
In a social media post on Tuesday, Wyden echoed campaigners in urging people to contact their senators.
"Congress wants to make it easier for the government to spy on you without a warrant," Wyden wrote. "Scared? Me too. Call your senator at (202) 224-3121 before April 19 and tell them to vote NO on expanding warrantless government surveillance under FISA."
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Spying Expansion Could Hand 'Stasi-Like Powers' to Trump, Privacy Advocates Warn
"In my opinion no country that has something like this to enter into force can still be considered to be free," said Edward Snowden.
Apr 15, 2024
NSA whistleblower Edward Snowden is among the privacy advocates sounding the alarm over a major expansion of mass surveillance that the U.S. House approved in a bipartisan vote last week, a step toward handing the federal government—and a potential second Trump administration—even more power to spy on Americans' communications without a warrant.
Sean Vitka, policy director of Demand Progress, used social media to press the top Democrat on the House Permanent Select Committee on Intelligence (HPSCI) on the implications of an amendment that the lower chamber approved as part of a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA).
"Did you know your FISA [electronic communications service provider] amendment facilitates Stasi-like powers, very plausibly for [former President Donald] Trump? I asked your staff if you were lied to about it or if you knew. Can you confirm?" Vitka asked Rep. Jim Himes (D-Conn.) on X, the platform formerly known as Twitter. (Trump, the presumptive 2024 GOP nominee, has postured as a FISA opponent, but as president he signed an extension of Section 702 authority.)
Vitka noted Sunday that Himes repeatedly characterized the amendment—which was led by HPSCI Chair Rep. Mike Turner (R-Ohio)—as narrow, even though it would dramatically expand the kinds of businesses that can be forced to help the government conduct surveillance operations under Section 702, possibly handing a would-be authoritarian chilling surveillance powers.
As the Brennan Center for Justice explained, "Although the amendment exempts hotels, libraries, restaurants, and a handful of other types of establishments, an enormous range of businesses could still be conscripted into service, including grocery stores, department stores, hardware stores, laundromats, barber shops, fitness centers, and countless other locations Americans frequent—even the offices in which they work."
"Moreover, although the targets would still have to be non-U.S. persons overseas, many of these businesses would lack the technical ability to turn over specific communications, so they would be forced to give the NSA access to entire communications streams—trusting the government to retain only the communications of approved targets," the group added.
Section 702 permits U.S. agencies to spy on non-citizens located outside of the country, but the communications of Americans—including activists, journalists, and lawmakers—have
frequently been swept up under the surveillance authority, sparking a bipartisan reform push.
Himes, an
opponent of reform efforts, responded dismissively to Vitka's question on Sunday, writing that "life is really too short to engage with people who need to use bombastic absurdities like 'Stasi-like.'"
"Yes I know exactly what is in there," Himes added, referring to the Turner-led amendment. "Some of it is classified. And none of it is remotely 'Stasi-like.' Sell your nonsense elsewhere."
Snowden, who in 2013 exposed the NSA's
illegal mass surveillance program, said in response that "the 'it's classified' dodge" by Himes "is a bright red flag."
"This amendment radically—and I repeat radically—expands the range of who the gov't can force to spy on their behalf. It may be law in DAYS!" Snowden wrote on social media.
Snowden went on to argue that Vitka's "invocation of 'Stasi-like' is not only a fair characterization" of the amendment, "it's probably generous."
"Frankly, it's hard to imagine any modern communication beyond the reach of this thing—which is, of course, the true reason they're trying to sneak it into law so quietly," he added. "It is unbelievably overbroad, and in my opinion no country that has something like this to enter into force can still be considered to be free."
"The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history."
Elizabeth Goitein, co-director of the Brennan Center's Liberty and National Security Program,
said the "disregard for Americans' civil liberties" in Himes' reply to Vitka "is staggering."
"This provision allows the NSA to force a huge range of ordinary U.S. businesses to assist the NSA in Section 702 surveillance," Goitein added. "That's not 'nonsense,' that's a fact. And this is your response?"
URGENT: Please read thread below. We have just days to convince the Senate NOT to pass a “terrifying” law (@RonWyden) that will force U.S. businesses to serve as NSA spies. CALL YOUR SENATOR NOW using this call tool (click below or call 202-899-8938). 1/25 https://t.co/HAOHURZoJQ
— Elizabeth Goitein (@LizaGoitein) April 15, 2024
The Reforming Intelligence and Securing America Act (RISAA), described by some as "Patriot Act 2.0," passed the House in an overwhelming bipartisan vote last week after mass spying supporters—including the Biden White House—defeated an effort to add a search warrant requirement to the bill.
But the legislation still has to clear a procedural hurdle to reach the Senate. Later Monday, the House is expected to vote on whether to table a motion to reconsider RISAA's passage.
If the bill does reach the closely divided Senate, privacy advocates are expected to continue their fight for meaningful reforms.
"The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history," Sen. Ron Wyden (D-Ore.) said in a statement following Friday's House vote. "It allows the government to force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government's behalf. That means anyone with access to a server, a wire, a cable box, a Wi-Fi router, or a phone."
"It would be secret: The Americans receiving the government directives would be bound to silence, and there would be no court oversight," he added. "I will do everything in my power to stop this bill."
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