(WASHINGTON) — Today, the U.S. House of Representatives passed a two-year extension of Section 702 of the Foreign Intelligence Surveillance Act (“FISA 702”), a controversial warrantless spying authority, and in an extremely narrow tie vote, rejected critical reforms to stop rampant abuse of the law that has been documented in recent years.
FISA 702 warrantless surveillance purports to target only foreign subjects, but in practice sweeps in a huge amount of Americans’ communications. This allows intelligence agencies to exploit a backdoor search loophole: the FBI, CIA, and NSA conduct “U.S. person queries” of FISA 702 records to deliberately pull up Americans’ private messages, all without a warrant or any court approval. This loophole has led to systemic abuse, involving thousands of improper queries each year, including those directed at protesters, campaign donors, journalists, lawmakers, and — in one case — the online dating matches of an analyst.
The House’s decision by the narrowest of margins — a 212-212 tie — to renew the legislation for two years without a warrant requirement will allow this abuse to continue, and is a serious blow to Americans’ civil rights and civil liberties. As a result, the Center for Democracy & Technology (CDT) opposes the bill as passed by the House.
Jake Laperruque, Deputy Director of CDT’s Security and Surveillance Project, said:
“Despite a litany of abuse — improper snooping on protesters, lawmakers, thousands of campaign donors, and journalists — the House today wrote the FBI and intelligence agencies a blank check to keep misusing FISA 702. This bill’s only response to dangerous U.S. person queries is simply codifying agency rules that have already proven grossly inadequate at stopping abuse of FISA 702. If this bill becomes law, in two years Congress will be back debating this same issue, no doubt with even more examples of law enforcement abusing the backdoor search loophole to conduct warrantless surveillance of Americans.”
The bill codifies a number of agency rules implemented in late 2021 in response to concerns about the tide of FISA 702 abuse. Despite claims from the intelligence community that these measures fully addressed problems, the FBI has engaged in an average of over 10 improper U.S. person queries every day since their implementation, including targeting a Member of Congress, a state lawmaker, and a judge that contacted the FBI to report civil rights violations by local police.
In addition to the key issue of U.S. person queries, the House approved several problematic amendments advanced by the House Intelligence Committee to actually expand FISA 702 surveillance.
One important amendment expands the definition of “electronic communication service providers” to pull in anyone with mere access to equipment on which communications are stored or transmitted (even if they never access the communications themselves). As CDT and FISA Court amicus Marc Zwillinger warned, this would allow a vast array of entities to be subject to FISA 702 orders, including most commercial business landlords, cloud providers, and sever rental services.
Alarmingly, the House approved this measure by a vote of 236-186.
Laperruque added:
“It’s shocking the House would be so reckless to approve this poorly drafted measure. It will open Pandora’s Box, and could be used to subject virtually any commercial landlord to receiving 702 orders, facilitating surveillance of the offices for media organizations, nonprofits, political campaigns, and lawyers. It would also do serious and unnecessary harm to the global competitiveness of America’s cloud service industry. We strongly hope the Senate will work to correct this error, and see this dangerous amendment stripped from the legislation.”
Additionally, the House unfortunately approved an amendment that authorizes dragnet scanning of FISA 702 data for all non-citizens entering the country, an unnecessary measure that will result in denying admission of individuals who pose no threat.
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The Center for Democracy & Technology (CDT) is the leading nonpartisan, nonprofit organization fighting to advance civil rights and civil liberties in the digital age. We shape technology policy, governance, and design with a focus on equity and democratic values. Established in 1994, CDT has been a trusted advocate for digital rights since the earliest days of the internet. The organization is headquartered in Washington, D.C., and has a Europe Office in Brussels, Belgium.