The US isn’t just reauthorizing its surveillance laws – it’s vastly expanding them
‘The last thing Americans need is a large expansion of government surveillance.’ Photograph: Samuel Corum/EPA
A little-known amendment to the reauthorized version of Fisa would enlarge the government’s surveillance powers to a drastic, draconian degree
The US House of Representatives agreed to reauthorize a controversial spying law known as Section 702 of the Foreign Intelligence Surveillance Act last Friday without any meaningful reforms, dashing hopes that Congress might finally put a stop to intelligence agencies’ warrantless surveillance of Americans’ emails, text messages and phone calls.
The vote not only reauthorized the act, though; it also vastly expanded the surveillance law enforcement can conduct. In a move that Senator Ron Wyden condemned as “terrifying”, the House also doubled down on a surveillance authority that has been used against American protesters, journalists and political donors in a chilling assault on free speech.
Section 702 in its current form allows the government to compel communications giants like Google and Verizon to turn over information. An amendment to the bill approved by the House vastly increases the law’s scope. The Turner-Himes amendment – so named for its champions Representatives Mike Turner and Jim Himes – would permit federal law enforcement to also force “any other service provider” with access to communications equipment to hand over data. That means anyone with access to a wifi router, server or even phone – anyone from a landlord to a laundromat – could be required to help the government spy.
The Senate is expected to vote on the House bill as soon as this week, and if it passes there, Joe Biden is likely to sign it. All Americans should be terrified by that prospect.
Section 702 is supposedly a foreign intelligence tool that allows the US government to surveil the communications of non-US citizens abroad without a warrant. But as many civil liberties groups have pointed out, intelligence agencies like the FBI also use it as a warrantless spying tool against Americans. The FBI abused its authority under the law no fewer than 300,000 times in 2020 and 2021, according to a ruling from a Fisa court judge. In arguing for the reauthorization of Section 702 late last year, Turner, chair of the House intelligence committee, shockingly suggested in a closed-door briefing that the law could be used to spy on Americans protesting against the war in Gaza.
It’s not supposed to be that way. In most cases, the fourth amendment requires the government to have a court-approved warrant to obtain an American’s communications. But intelligence agencies have used Section 702 as a loophole that allows them to vacuum up and comb through communications between an American and a foreigner who can be targeted under the law – all without a warrant.
The House didn’t just fail to reform Section 702. It voted to grant intelligence agencies expansive new surveillance powers. The Turner-Himes amendment would allow them to deputize ordinary Americans and businesses as government spies. When privacy advocates raised alarms about the Stasi-like powers this would create, lawmakers like Himes brushed them off without a substantive response. The proposed expansion deserves an explanation. The US government has a long history of abusing its existing surveillance powers. It would be naive to think it wouldn’t abuse new ones.
While the Turner-Himes amendment lists some business types that are excepted from the requirement to help spy – like dwellings and restaurants – an almost limitless number of entities that provide wifi or just have access to Americans’ devices could be roped into the government’s surveillance operations. Using the wifi in your dentist office, hiring a cleaner who has access to your laptop, or even storing communications equipment in an office you rent could all expose you to increased risk of surveillance.
The Turner-Himes amendment would also make it harder to push back on abusive surveillance practices, including those targeting first amendment rights. Take, for example, the surveillance of journalists. Big tech companies may sometimes resist government orders to spy on news outlets. They command armies of lawyers, receive Section 702 orders frequently, and have a commercial incentive to at least appear to care about their customers’ privacy concerns. But what hope could a news organization have that its cleaning crew, for instance, will want to take on the federal government on its behalf?