DOJ Woos Senate Over Warrantless Spying Bill Ahead of Looming Deadline

The Department of Justice (DOJ) sought on Thursday to ease talk over a provision included in the bill to reauthorize the country’s warrantless spying powers, which would change the definition of which media companies must comply.

The provision, added in an amendment approved by the House, is one of several alarming privacy hawks in the Senate as they adopt legislation to revamp Section 702 of the Foreign Intelligence Surveillance Act (FISA).

The amendment addresses the government’s somewhat mysterious battle to get an unnamed communications company to help with overseas surveillance, with the Foreign Intelligence Surveillance Court (FISC) ruling that a change in the law was the only way to force compliance .

Although critics say the language is overly broad and will enlist many companies to conduct 702 surveillance, the Justice Department wrote that it “commits to applying this definition of [electronic communications service providers] (ECSP) exclusively to cover the type of service provider at issue in the dispute before the FISC.”

The department also said it would update Congress every six months on how the provision is used.

The promise comes in a letter forwarded by Attorney General Merrick Garland, urging senators not to allow 702 to expire as they await Friday’s deadline to reauthorize the program.

Some lawmakers made it immediately clear that the compromise did little to support their buy-in.

“Don’t be fooled. The DOJ does not deny that the provision greatly expands the number of AMERICANS AND AMERICAN BUSINESSES that can be forced to spy for the government,” wrote Sen. Ron Wyden (D-Ore.), who introduced his own FISA 702 reform bill, in the social platform

A senior DOJ official previously told The Hill that the amendment was “designed to cover all of the concerns that have been raised” about the sweep across a wide range of businesses.

Section 702 authorizes the nation’s intelligence agencies to spy only on noncitizens living abroad. But in the course of these operations, the government frequently sweeps the communications of Americans in contact with foreigners under surveillance.

The bill includes a number of reforms, including one that sharply limits the number of personnel who can sign off on any 702 database queries involving people in the U.S., and another that requires an after-the-fact audit for all people searches. In the USA.

But an amendment introduced by House Intelligence Chairman Mike Turner (R-Ohio) changes the definition of specific electronic communications service providers that must comply with Section 702.

A one-page explanation from the House Intelligence Majority said the change in definition closes a loophole created by the Foreign Intelligence Surveillance Court by exempting “a specific type of vendor,” while a separate explanation from the Minority said the effort is “ designed to respond to a very specific (and classified) fact pattern.

The heavily redacted court opinion does not make clear the details that led the intelligence community to seek a legislative solution.

Thursday’s letter said the vague public discussion is intentional.

“The number of technology companies providing this service is extremely small and we will identify these technology companies for Congress in a classified appendix. To protect sensitive sources and methods, the ECSP provision in H.R. 7888 was designed to avoid unnecessarily alerting foreign adversaries about sensitive collection techniques,” wrote Carlos Uriarte, DOJ’s chief of legislative affairs, in a Wednesday letter to intelligence leaders. of the Senate, referencing the bill number. .

“To facilitate adequate oversight and transparency of the Administration’s commitment to apply any updated definition of ECSP only for the limited purposes described above, the Department will also report to Congress semi-annually on any applications of the updated definition.”

It’s a reworking of an earlier provision in the House Intelligence bill that raised concerns that the language would open up businesses like restaurants and hotels to sharing data created by their customers while using the Internet.

The latest version of the amendment, now part of the bill, specifically exempts many businesses that serve the public, such as restaurants, hotels and libraries, as well as private residences. Still, it drew the ire of privacy advocates.

A senior Justice Department official told The Hill last week that the provision “is really an effort to respond to that opinion and simply update the statute to keep up with changes in communications technology.”

“The exceptions in the provision are designed to cover all of the concerns that have been raised. It creates any kind of food service, any kind of public accommodation, every kind of housing – houses, apartment buildings – every kind of community facility, from libraries to hospitals to recreational facilities and day care centers,” the official said.

“Claims that this is a broad expansion of authority are simply incorrect.”

Privacy groups outside of Congress also criticized the provision.

“The issue is that in virtually any US company, there are people who communicate through their devices, and they may be communicating with foreigners abroad, and they may be communicating with foreign targets. And so the idea is that you can get to the communications of these foreign targets, but picking up the international communications that are transmitted through the equipment located at all of these companies,” Elizabeth Goitein, senior director of the national security program at the Brennan Center for Justice. , previously told The Hill.

“What we’re going to see in these establishments is just massive amounts of completely domestic communications that we’re giving the NSA access to. And so the NSA is on the honor system to not withhold any of this,” Goitein continued, using an abbreviation for National Security Agency.

Uriarte, in his letter, stressed that the provision, like FISA itself, would only be used to target foreign nationals abroad.

“It would be illegal under Section 702 to use the modified definition of ECSP to target any entity within the United States, including, for example, any business, residence, or place of worship. It would also be illegal to force any service provider to direct the communications of any person within the United States, regardless of whether such person is in contact with a country outside the United States. person outside the United States,” he wrote.