Senate privacy hawks push to kill House amendment to warrantless surveillance bill

Senators from both sides of the aisle are banding together to try to kill a House-approved addition to the bill reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), which they say would force more companies to help in government surveillance of foreigners.

An amendment from Sen. Ron Wyden (D-Ore.) and others would eliminate from the bill a House provision that redefines what types of communications companies would have to comply with the law.

The House amendment from Intelligence Committee Chairman Mike Turner (R-Ohio) was intended to address a mysterious government battle to get an unnamed communications company to help with overseas surveillance, with the Foreign Intelligence Surveillance Court ( FISC) mandating a change in the law was the only way to force compliance.

A one-page article from House Intelligence Democrats said the measure was “designed to respond to a very specific (and classified) fact pattern.”

But opponents argue that the provision is drafted too broadly and risks covering too many companies.

“The government says it will pursue a more restricted set of companies, but it cannot talk about it because it is all secret. This is not how laws, especially surveillance authorities, should be written,” Wyden, a member of the Senate Intelligence Committee, said on the Senate floor Friday morning.

“Blocking a last-minute provision that dramatically expands surveillance authorities in a way that could affect almost any American is the height of irresponsibility.”

The bill’s provision changes the definition of electronic communications service providers, but notes that restaurants, hotels and businesses serving the public would not be required to comply with Section 702 oversight.

“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 to day care centers,” said a senior Department official. of Justice. previously told The Hill.

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

But Wyden argued Friday that even if these companies were exempt, those who provide them with communications equipment or services may not be.

“Under this provision, homeowners, the companies that maintain the cables and WiFi, and any number of companies whose employees have access to any of this equipment could be forced to cooperate with government surveillance,” Wyden said.

Tensions over the provision were evident on Thursday when the Justice Department distributed a letter previously sent only to Senate intelligence leaders seeking to calm fears about the House amendment — also committing to use it only in restricted form.

“The Department is committed to applying this ECSP definition exclusively to cover the type of service provider at issue in the litigation before the FISC – that is, technology companies providing the service that the FISC concluded fell outside the current definition.” , Carlos Uriarte, chief of legislative affairs for the Department of Justice, wrote in the letter, adding that he would disclose the company in a confidential 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.”

To Wyden, this was a tacit admission that the measure was not written narrowly enough to prevent abuse.

“The DOJ letter does not deny that the provision authorizes the government to force a broad range of Americans and American companies to assist in warrantless surveillance under Section 702. In fact, the DOJ essentially admits this fact by promising that it will only enforce new authorities for certain companies on a secret list,” Wyden said.

“This commitment is worth exactly nothing. It is not even binding on this administration. And it’s certainly not binding on the next government.”

Wyden was joined by conservatives like Senators Cynthia Lummis (R-Wyo.) and Mike Lee (R-Utah) in sponsoring the amendment.

Section 702 of FISA expires at midnight, and any changes to the bill would require it to be sent back to the House.