Senate Approves Section 702 Reauthorization, Keeps Only The Bad Stuff

The government had a few years to sort this out, but as usual, the final call came down to the last minute. Shortly after Section 702 expired at midnight, April 19, the Senate pushed through a two-year reauthorization — one pretty much free of any reforms.

This happened despite there being a large and vocal portion of the Republican party seeking to curb the FBI’s access to these collections because some of their own had been subjected to the sort of abuse that has become synonymous with the FBI’s interaction with this particular surveillance program.

The reauthorization passed to the Senate from the House had been stripped of a proposed warrant requirement and saddled with an especially expansive definition of the term “electronic communication service provider.” Here’s how Senator Ron Wyden explained it while speaking out against the amendment:

Now, if you have access to any communications, the government can force you to help it spy. That means anyone with access to a server, a wire, a cable box, a wifi router, a phone, or a computer. Think about the millions of Americans who work in buildings and offices in which communications are stored or pass through.

After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will, and force them to become an agent for Big Brother.

For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night.

This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.

So, instead of reform, we’re getting an even worse version of what’s already been problematic, especially when the FBI’s involved. As the clock ticked down on this vote (but not really: the FISA court had already granted the Biden administration’s request to keep the program operable as-is until 2025), attempts were made to strip the bill of this dangerous addition and add back in the warrant requirement amendment that had failed in the House.

None of this worked, as Gaby Del Valle reports for The Verge:

Sens. Ron Wyden (D-OR) and Josh Hawley (R-MO) introduced an amendment that would have struck language in the House bill that expanded the definition of “electronic communications service provider.” Under the House’s new provision, anyone “who has access to equipment that is being or may be used to transmit or store wire or electronic communications.” The expansion, Wyden has claimed, would force “ordinary Americans and small businesses to conduct secret, warrantless spying.” The Wyden-Hawley amendment failed 34-58, meaning that the next iteration of the FISA surveillance program will be more expansive than before.

Both Sens. Paul and Dick Durbin (D-IL) introduced separate amendments imposing warrant requirements on surveilling Americans. A similar amendment failed in the House on a 212-212 vote. Durbin’s narrower warrant requirement wouldn’t require intelligence agencies to obtain a warrant to query for those communications, though it requires one to access them.

The version headed to the president’s desk is the worst version. The rush to push this version of the bill through possibly gained a little urgency when two unnamed service providers informed the government they would stop complying with FISA orders pretty much immediately if the Senate didn’t renew the program.

One communications provider informed the National Security Agency that it would stop complying on Monday with orders under Section 702 of the Foreign Intelligence Surveillance Act, which enables U.S. intelligence agencies to gather without a warrant the digital communications of foreigners overseas — including when they text or email people inside the United States.

Another provider suggested that it would cease complying at midnight Friday unless the law is reauthorized, according to the people familiar with the matter, who spoke on the condition of anonymity to discuss sensitive negotiations.

We’ll never know how empty these threats might have been or if the Intelligence Community would have even noticed the brief interruption in the flow of communications. Section 702 has been given a two-year extension in the form approved by the Senate, superseding the FISA Court’s blessing of one more year of uninterrupted spying if discussions over renewal blew past the April 19, 2024 deadline.

If you’re a fan of bipartisan efforts — no matter the outcome — well… enjoy your victory, I guess. But there’s nothing about this renewal debacle that can actually be called a win. Unless you’re the FBI, of course. Then it’s all gravy.