Congress again did not limit the scope of espionage powers in the new Defense Bill
The US Senate passed the National Defense Authorization Act (NDAA) on Wednesday after congressional leaders earlier this month repealed the bill over provisions designed to protect against surveillance. government excesses. The “must pass” legislation now heads to President Joe Biden for his expected signature.
The Senate’s 85–14 vote cements a major expansion of the controversial US surveillance program, Section 702 of the Foreign Intelligence Surveillance Act (FISA). Biden’s signature would ensure that the Trump administration opens up with newfound power to force a range of companies to help US spies eavesdrop on calls between Americans and foreigners abroad.
Despite concerns about unprecedented spying power falling into the hands of controversial figures like Kash Patel, who has vowed to investigate Donald Trump’s political enemies if confirmed to lead the FBI, in the end, Democrats have done little to rein in the program.
The Senate Intelligence Committee first approved changes to the 702 program this summer with an amendment to clarify newly added language that experts said was dangerously vague. The vague text was passed into law by Congress in April, with Senate Democrats promising to fix the problem by the end of the year. Ultimately, those efforts proved futile.
Legal experts began raising alarms last winter about Congress’s efforts to expand FISA to cover a host of new businesses that were not initially subject to Section 702 wiretapping directives. While reauthorizing the program in April, Congress changed the definition of what the government considers an “electronic communications service provider,” a term that applies to companies that can be charged must install wiretaps on behalf of the government.
Traditionally, “electronic communications service provider” has referred to phone and email providers, such as AT&T and Google. But as Congress redefined the term, the new limits on the government’s wiretapping powers are unclear.
Many believe these changes are intended to help the National Security Agency (NSA) target communications stored on servers in US data centers. However, due to the secret nature of the 702 program, the updated document deliberately avoids specifying which new types of businesses will be subject to the government’s requirements.
Marc Zwillinger, one of the few private attorneys to testify before the nation’s secret surveillance court, wrote in April that changes in Act 702 mean “any U.S. business can may have your contact information.” [wiretapped] by the homeowner having access to the office wiring or data center where their computer resides,” thus expanding the 702 program “into many new contexts where there is a particularly high likelihood of communications of US citizens and others in the US would be ‘inadvertently’ acquired by the government.”
