FBI and friends get two more years of warrantless FISA Section 702 snooping

Senate kills reform amendments, Biden swiftly signs bill into law

US lawmakers on Saturday reauthorized a contentious warrantless surveillance tool for another two years — and added a whole bunch of people and organizations to the list of those who can be compelled to spy for Uncle Sam.

The Senate, by a vote of 60-34, sent the legislation to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA) to President Biden, who swiftly signed the Reforming Intelligence and Securing America Act, or RISAA [PDF] into law. 

Shortly before the bill's passage, senators shot down six amendments that would have reined in the US intelligence agencies' abilities to carry out effectively warrantless surveillance under Section 702. These included an amendment that would have required federal agencies to show probable cause and obtain a warrant from America's secret Foreign Intelligence Surveillance Court before accessing the private communications of US persons caught up in surveillance queries.

Under the status quo, the Feds would run queries on US persons' comms data before obtaining an intelligence court warrant, later arguing the searches were needed before it was possible to “establish probable cause or demonstrate” urgency.

The Senate also rejected an amendment that sought to curb an expanded definition of an electronic communications service provider, which previously covered traditional phone, email, and internet companies. 

Under RISAA, as passed, however, now "any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications" may be required to hand these communications over to the Feds for their intelligence searches and analysis, as well as "custodians" of these so-called service providers.

After the US House of Representatives approved the Section 702 reauthorization on April 12, US Senator Ron Wyden (D-OR) warned RISAA "will force a huge range of companies and individuals to spy for the government."

On Saturday, after voting no on the bill, Wyden blasted his fellow senators for waiting "until the 11th hour to ram through renewal of warrantless surveillance in the dead of night."

"Time after time anti-reformers pledge that their band-aid changes to the law will curb abuses, and yet every time, the public learns about fresh abuses by officials who face little meaningful oversight," Wyden said in a statement. "Those of us who believe liberty and security are not mutually exclusive have a lot of work to do."

FISA Section 702 allows the FBI, CIA, NSA and the National Counterterrorism Center (NCTC) to collect up and snoop on phone calls, text messages, and emails involving select foreigners residing outside America, with the intent being to prevent these intelligence targets from committing terrorist acts or other serious crimes.

However, if the communications involve so-called "US persons" — mainly, but not solely, American citizens, permanent residents, and corporate entities — then these messages are also scooped up for the Feds to pore over without first obtaining a warrant.

This warrantless surveillance of Americans has been abused by the FBI to snoop on protesters, political campaign donors, and even a US senator.

Unsurprisingly, the FBI and Biden administration have said these civil liberties and privacy concerns are unfounded. Earlier this year FBI boss Christopher Wray told lawmakers that "702 is the greatest tool the FBI has to combat [Chinese] hacking groups," and the bureau's top brass has called it "absolutely critical for the FBI to continue protecting the American people."

On Saturday, following the Senate's vote to reauthorize Section 702, US Attorney General Merrick Garland described it as "indispensable to the Justice Department's work to protect the American people from terrorist, nation-state, cyber, and other threats."

Meanwhile, digital privacy and civil liberties advocates vowed to continue pushing for surveillance reforms.

"It is profoundly disappointing that Congress passed a bill that gives the government more ways to secretly surveil us — with little power to hold spy agencies accountable," said Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union. 

"Senators were aware of the threat this surveillance bill posed to our civil liberties and pushed it through anyway, promising they would attempt to address some of the most heinous expansions in the near future," Hamadanchy added. "We plan to make sure these promises are kept." ®

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