House Intelligence Committee Chairman Mike Turner (R-OH) and Ranking Member Jim Himes (D-CT) offered an amendment to a spy powers reform bill that effectively serves as a “Patriot Act 2.0” and greatly expands surveillance of Americans.
Turner and Himes offered an amendment to the Reforming Intelligence and Securing America Act (RISAA), a bill that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 is meant to target foreign adversaries; however, intelligence agencies often surveil American citizens’ private communications without a warrant.
Himes and Turner said in their summary that their amendment “narrowly updates” the definition of electronic communication service provider under Section 702; however, the proposal would drastically increase the areas that intelligence agencies could surveil.
The measure updates the definition of electronic service provider to also include “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.”
Essentially, the amendment would significantly expand the number of businesses and their employees who could be compelled to spy on their customers and provide warrantless access to their communications systems in accordance to this controversial FISA provision.
This provision has been referred to by privacy advocates as a “trojan horse” for “PATRIOT Act 2.0.”
Marc Zwillinger, a top FISA expert and one of the five handpicked FISA Court Amici, explained:
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.
Zwillinger added that the proposal would likely expand the ability by which the government could “inadvertently” surveil U.S. citizens:
Most problematically, it would expand the use of warrantless surveillance under FISA 702 into a variety of new contexts where there is a particularly high likelihood that the communications of U.S. citizens and other persons in the U.S. will be “inadvertently” acquired by the government. And it raises the specter that FISA 702 will become the rule and not the exception as the way in which the government acquires communications. Congress should be fully aware of that before it considers this amendment.
Demand Progress Policy Director Sean Vitka and FreedomWorks President Adam Brandon said in a joint statement in December about a prior version of this proposal:
The FISA Reform and Reauthorization Act is a Trojan Horse for PATRIOT Act 2.0. Chairman Turner and Ranking Member Himes should be ashamed of themselves for either deliberately or incompetently writing legislation that would dramatically expand warrantless surveillance under Section 702 of FISA, the massive spying power that has been abused on a ‘persistent and widespread’ basis. This is staggering overreach that is absolutely at odds with the millions of Americans crying out for Congress to protect their privacy. [Emphasis added]
Rep. Tom Tiffany (R-WI) wrote, “No more warrantless searches of U.S. citizens. The FBI should be required to GET A WARRANT.”
