House Republican leadership is blocking a proposal to narrow a controversial provision that grants intelligence agencies the power to spy on a vast number of American businesses to help the government spy.
Congress in April reauthorized Section 702 of the Foreign Intelligence Surveillance Act (FISA), a controversial surveillance designed to target foreign adversaries; however, it often surveils American citizens without a warrant.
Tucked within this law is a provision, known as the electronic communications service provider (ECSP) definition, which broadly expanded the types of business and service providers that can be forced to assist the program to “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.”
The dramatic expansion of the ECSP raised alarm bells.
Privacy advocates decried it as a “trojan horse” for “PATRIOT Act 2.0.”
Marc Zwillinger, a top FISA expert and one of the FISA Court Amici, wrote that any American business could have its communications tapped by a landlord:
The new amendment would — notwithstanding these exclusions — still permit the government to compel the assistance of a wide range of additional entities and persons in conducting surveillance under FISA 702. The breadth of the new definition is obvious from the fact that the drafters felt compelled to exclude such ordinary places such as senior centers, hotels, and coffee shops. But for these specific exceptions, the scope of the new definition would cover them. That’s not a “narrow” change.
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It also means that any U.S. business could have its communications (if one side is foreign) tapped by a landlord with access to office wiring, or the data centers where their computers reside, even if it eliminates the possibility that the same surveillance could be conducted with the assistance of hotels, restaurants, community centers, and other public retail establishments. For a specific hypothetical example of how this surveillance could occur, see our prior blog post.
Sen. Josh Hawley (R-MO), a former attorney general, in April argued that the FBI has proven they do not deserve to have more power to surveil Americans, given their history of abuse.
However, despite the widespread concern about the provision, the Senate moved to pass the FISA reauthorization bill since it faced a time crunch to pass the Section 702 reauthorization bill. Sen. Mark Warner (D-VA), the Senate Intelligence Committee chairman, promised he would fix the apparent issues with the definition in another intelligence bill in 2024.
Now that Congress is wrapping up its work ahead of the holiday season, lawmakers are slipping the intelligence bill into the National Defense Authorization Act (NDAA), a must-pass defense bill.
The Senate’s version of the intelligence bill included an amendment to limit the ECSP definition to cloud computer servers, rather than the seemingly endless number of businesses that might have to help the government spy.
The New York Times reported that House Republican negotiators have insisted that the amendment to fix the ECSP definition stay out of the NDAA. House Republicans with authority to decide what will be folded into the defense bill include Speaker Mike Johnson (R-LA), House Armed Services Committee Chairman Mike Rogers (R-AL), and House Intelligence Committee Chairman Mike Turner (R-OH).
Spokesmen for each office did not respond to the Times. A spokeswoman for Warner’s office said that he determined to fix the provision “whether it’s in this Congress or the next.”
The ESCP definition was purposely written vaguely to mark its purpose from foreign adversaries, and the Times noted that its motivation was a secret FISA court opinion, which stated that the original definition of the law did not cover cloud servers.
House Republican leadership’s objection to the ECSP amendment in the NDAA raises questions as to whether or not leadership intends for Section 702 to apply to more Americans, businesses, and service providers.
Speaker Johnson’s office did not respond to a comment request as to whether Johnson backs the removal of the ECSP fix in the NDAA, or if this means that the Speaker wants Section 702 to apply to more Americans, businesses, or service providers than what Chairmen Turner or Warner claimed during this year’s FISA debate, given that the fix specifically scopes the expansion to the FISA court opinion Turner and Warner cited.
Chairman Turner’s office did not respond to a similarly worded comment request.
Privacy advocates’ best shot at addressing this provision, in and out of Congress, would likely be in mid-2026 when Section 702 expires again. Many of these advocates said that there is a dire need for reform to address this issue.
Bob Goodlatte, the former chairman of the House Judiciary Committee and senior policy adviser to the Project for Privacy and Surveillance Accountability (PPSA), told Breitbart News in a written statement:
This measure passed because of assurances that this insanely broad authority would be narrowed. The promise of a fix was made and accepted in good faith, but that promise is being trashed by advocates for greater surveillance of our citizens. Unless Congress reverses course, Americans’ data that runs through the Wi-Fi and servers of millions of small businesses, ranging from fitness centers to department stores, small office complexes, as well as churches and other houses of worship, will be fair game for warrantless review. This would truly transform our country into a thorough surveillance state. I can’t imagine the next Congress and new Administration would welcome that. [Emphasis added]
“The current definition of an electronic communication service provider (ECSP) is way too broad under RISAA, sweeping in not just communication service providers, but any service provider, expanding the covered entities by tens of thousands. This is an unacceptable outcome, and Congress should take advantage of the opportunity to fix this overbroad definition issue in the NDAA,” James Czerniawski, a senior policy analyst at Americans for Prosperity, told Breitbart News.
“Senators agreed to vote for this provision based on a promise by the Senate Intelligence Committee chair that it would be fixed in subsequent legislation. Now House leaders are retroactively trying to unravel that bargain,” said Elizabeth Goitein of the Brennan Center for Justice at New York University’s law school.Sen. Ron Wyden (D-OR) said, “If that fix doesn’t go through and the next administration misuses these sweeping new FISA powers … no one will be able to claim they didn’t see it coming.”
Sean Moran is a policy reporter for Breitbart News. Follow him on X @SeanMoran3.
