When the U.S. House passed the Reforming Intelligence and Securing America Act (RISAA), which reauthorizes the FISA Section 702 surveillance authority, it overlooked something big – an amendment that would drive the greatest expansion of government surveillance authority in recent history. The Senate has time to correct this and restore balance between the needs of national security and the safeguarding of Americans’ civil liberties.
Section 702 of the Foreign Intelligence Surveillance Act is a legal authority enacted by Congress to enable the surveillance of foreign threats located abroad. But it has increasingly become a means of surveilling Americans located within the United States whose communications are often caught up in the government’s global trawl of data. Section 702 authority has been used millions of times in recent years to query, or target, Americans’ communications. In the House, reformers proposed an amendment to add a warrant requirement before the government can query a U.S. person’s data. That amendment, which failed in a tie vote, was the primary focus of debate on the bill.
As RISAA comes to the Senate, attention is now being cast on another amendment – one from the House Permanent Select Committee on Intelligence (HPSCI) that many have come to call the “Everyone’s a Spy” provision. This measure was portrayed as a “narrow” definitional change to the law concerning electronic communications service providers – big telecom and Internet companies – which obligated them to cooperate with NSA surveillance. These big companies can be compelled to spy for the government, and then be subject to gag orders, forbidding them from telling customers they have been surveilled.
The new expanded definition of the Everyone’s a Spy provision is much broader than what many members of Congress thought. It would give the government the right to similarly compel millions of small businesses that provide Wi-Fi, or have access to routers or other ordinary communications equipment, to act as the government’s partners in surveillance. They, too, would be bound not to tell their customers about this surveillance.
The HPSCI amendment achieves this by including any service provider who has access to equipment that transmits communications. After critics complained that digital loungers in hotel lobbies and coffeehouses would have their data hoovered up by the government, the authors of this amendment provided carve-outs for hotels, restaurants, dwellings, and community centers. This was a good PR move. But this measure still applies to most everyone – owners and operators of any facilities (other than the exempted categories) that house equipment used to store or carry data.
If this became law, millions of American small business owners would have a legal obligation to hand over data that runs through their equipment. These small businesses could be forced to give the NSA direct access to their equipment, or else they might just copy messages en masse and turn them over. And when they’re done with doing their part in mass surveillance, these small businesses would then be placed under a gag order to hide their activities from their customers.
Small businesses are just waking up to what is about to be done to them by the Everyone’s a Spy amendment. Customers are sure to be outraged when they learn that the businesses they patronize are potentially spying on them. All U.S. business might suffer, as this law is sure to also widen the wedge between the United States and European Union on the contentious issue of spying and data privacy. Meanwhile, U.S. consumers and businesses would have no legal way to resist these intrusions. It is easy to see why Sen. Ron Wyden of Oregon (pictured) calls this expansion of government surveillance “terrifying.”
The intelligence community is pressing the Senate to act before this authority lapses on April 19. But the agencies have already secured permission from the FISA Court to continue conducting Section 702 surveillance in its current form until April 2025. So the Senate has plenty of time to act with deliberation. It can boldly strike this toxic Everyone’s a Spy amendment. And considering the popularity of adding a warrant requirement for searching for and accessing Americans’ communications caught up in Section 702 databases, it should do that as well.
Bob Goodlatte represented Virginia’s 6th District as a Republican in Congress from 1993 to 2019 and chaired the House Judiciary Committee. He is a senior policy adviser to the Project for Privacy and Surveillance Accountability.
