Senate Now Considering Section 702 Re-Up With A Dangerous Amendment Attached To It

Legal Issues

from the 702-but-make-it-worse dept

For a little while, it looked as though Section 702 surveillance might finally be curtailed, if not substantially reformed. Lots of House Republicans were irritated that some of Trump’s inner circle had been (inappropriately) targeted by FBI investigators taking advantage of the agency’s backdoor access to US persons’ communications collected by a foreign-facing collection program.

This was on top of the years of abuse the FBI has committed and continues to commit in terms of its warrantless access to communications collected by the NSA. Despite the FBI’s continuous promises to do better (and its continual failure to achieve that goal), far too many House members were willing to vote for a clean reauthorization of Section 702. And far too many — especially on the Democratic side of the aisle — were willing to vote down a proposed warrant requirements, something privacy advocates like Senator Ron Wyden have been trying to get written into law for years.

Not only did the warrant requirement fail, but the reauthorization effort moved from the House to Senate with something much, much worse attached.

The Turner-Himes amendment – so named for its champions Representatives Mike Turner and Jim Himes – would permit federal law enforcement to also force “any other service provider” with access to communications equipment to hand over data. That means anyone with access to a wifi router, server or even phone – anyone from a landlord to a laundromat – could be required to help the government spy.

This vastly expands the government’s collection authority under Section 702, moving on from the normal definition of “service providers” to cover places where communications are at rest, rather than being transmitted or received. Here’s how Marc Zwillinger, Steve Lane, and Jacob Sommer break down the wording of the Turner-Himes amendment:

[It] (1) drops the qualifier “communication” from the class of covered “service providers;” (2) makes access to communications-carrying equipment enough to establish eligibility; and (3) adds “custodian” to the list of individuals who can be forced to provide assistance. But unlike the FRRA, it then enumerates a list of business types that cannot be considered ECSPs, including public accommodations, dwellings, restaurants, and community facilities. 

This amendment was written in response to a FISA court ruling that told the government’s surveillance apparatus that the law — as it currently stood — did not cover the target of the proposed surveillance. It fell outside the statutory definition of “electronic communication service provider.” The FISA court suggested that if the ODNI (Office of the Direction of National Intelligence) and DOJ didn’t like the wording, they were welcome to take it up with Congress.

That’s exactly what they did. And now, two House reps have managed to attach an amendment that broadly expands the definition of “electronic communication service provider” to cover just about anything that might be a source where electronic communications can be collected.

Here’s how Senator Wyden described the amendment’s intended effects in his statement [PDF] during Senate discussion of the pending reauthorization:

Now, if you have access to any communications, the government can force you to help it spy. That means anyone with access to a server, a wire, a cable box, a wifi router, a phone, or a computer. Think about the millions of Americans who work in buildings and offices in which communications are stored or pass through.

After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will, and force them to become an agent for Big Brother.

For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night.

This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.

Of course, those pushing the amendment claim nothing bad will happen if they give the NSA (and, by extension, the FBI) more collection power and more sources to collect from. Rep. Himes has responded to concerns by treating all criticism of the amendment as overblown.

Wyden’s statement points out the flaw of this argument: mainly that it assumes, with zero facts in evidence, that this will be the one expanded surveillance power that won’t be abused.

Supporters also claim that the provision has a narrow purpose and that the government does not intend to start tapping into every American’s phone line or wifi. But that’s not how this provision is written. And I would say respectfully that anyone who votes to give the government vast powers under the premise that intelligence agencies won’t actually use it is being shockingly naive.

It’s not just naïve. It’s asinine. Years of abuse by the FBI clearly demonstrates the FBI will abuse access to these new “service providers.” Years of surveillance power abuse by the NSA — an agency headed by officials with “collect it all” attitudes and willingness to continuously test the outer limits of the Constitution — makes the same statement: if you give the IC this power, it will be abused.

And the reps behind the amendment know it. As Wyden pointed out, the fact that carve-outs for coffee shops, hotels, restaurants, and community facilities were written into the amendment following the first signs of opposition make it clear even the amendment’s authors knew the proposed changes would be a vehicle for abuse, hence the quick move to exempt certain entities from the broad definitions they’re seeking to have written into law.

Considering this surveillance authority has already been abused by the government to target anti-police violence protesters, political campaign donors, and journalists, expanding the number of sources where communications can be collected only ensures exponential growth in the number of abuses.

What started as an effort that may have actually limited the FBI’s abuses by forcing it to obtain warrants has devolved into a proposed rewriting of the authority to vastly expand the government’s surveillance opportunities. If we can’t get a warrant requirement approved, the very least the Senate can do is ensure this amendment does not become law.

Filed Under: 4th amendment, fbi, fisa, jim himes, mike turner, ron wyden, section 702, spying, surveillance, warrant