Congress Again Fails to Limit Scope of Spy Powers in New Defense Bill

The U.S. Senate passed the National Defense Authorization Act (NDAA) on Wednesday, after congressional leaders earlier this month rolled back provisions in the bill aimed at preventing excessive government surveillance. The “must-pass” legislation now heads to President Joe Biden for his signature.

The Senate voted 85-14 to confirm a major expansion of the United States’ controversial surveillance program, Section 702 of the Foreign Intelligence Surveillance Act (FISA). Biden’s signature would secure new powers for the Trump administration to force companies to help U.S. spies eavesdrop on phone calls between Americans and foreigners abroad.

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This summer, the Senate Intelligence Committee approved changes to the Section 702 program for the first time, including an amendment aimed at clarifying new language that experts said was dangerously vague. Congress enacted the vague text into law in April, and Senate Democrats pledged to correct the issue later this year. Ultimately, these efforts proved futile.

Last winter, legal experts began sounding the alarm about Congress’ efforts to expand FISA to cover a host of new businesses that would otherwise be exempt from the Section 702 wiretap directive. In reauthorizing the program in April, Congress changed the government’s definition of an “electronic communications service provider,” a term that applies to companies that could be forced to install wiretapping devices on behalf of the government.

Traditionally, “electronic communications service provider” refers to phone and email providers, such as AT&T and Google. But as Congress redefines the term, new limits to the government’s wiretapping powers are unclear.

The changes are widely believed to be designed to help the National Security Agency (NSA) target communications stored on servers at U.S. data centers. However, due to the confidential nature of the 702 program, the updated language intentionally avoids specifying which types of new businesses will be subject to the government requirements.

Marc Zwillinger, one of the few private attorneys to testify before a U.S. secret surveillance court, wrote in April that changes to Regulation 702 meant “any U.S. company can possess its communications.” [wiretapped] By landlords who have access to office wiring or the data centers where their computers are located,” thereby extending the 702 Program “to a variety of new environments in which the communications of U.S. citizens and others in the United States are at high risk of being compromised. Influence”. will be ‘inadvertently’ acquired by the government. “