The US Senate passed the National Defense Authorization Act (NDAA) on Wednesday after congressional leaders struck down provisions protecting against excessive government surveillance earlier this month. The “must-pass” bill now goes to President Joe Biden for his expected signature.
The Senate’s 85-14 vote underpins a major expansion of a controversial U.S. surveillance program, Section 702 of the Foreign Intelligence Surveillance Act (FISA). Biden’s signature will ensure the Trump administration begins using newfound power to force a variety of companies to help U.S. spies listen in on calls between Americans and foreigners abroad.
Despite concerns that unprecedented spying powers could fall into the hands of controversial figures like Kash Patel, who has vowed to investigate Donald Trump’s political enemies if he is confirmed as head of the FBI, Democrats ultimately made little effort to rein in the program.
The Senate Intelligence Committee approved changes to the 702 program for the first time this summer with an amendment aimed at clarifying newly added language that experts had deemed dangerously vague. The vague text was signed into law by Congress in April, with Senate Democrats vowing to correct the issue later this year. Ultimately, these efforts proved futile.
Legal experts began issuing warnings last winter about congressional efforts to expand FISA to a variety of new companies that were not originally subject to Section 702’s wiretapping guidelines. When Congress reauthorized the program in April, it changed the definition of what the government considers an “electronic communications service provider,” a term applied to companies that can be forced to install listening devices on behalf of the government.
Traditionally, the term “electronic communications service provider” refers to telephone and email providers such as AT&T and Google. But because Congress has redefined the term, the new limits of the government’s wiretapping powers are unclear.
It is widely believed that the changes were intended to help the National Security Agency (NSA) target communications stored on servers in US data centers. However, due to the secretive nature of the 702 program, the updated text deliberately omits specifying which types of new businesses are subject to the government’s requirements.
Marc Zwillinger, one of the few private lawyers to testify before the country’s secret surveillance court, wrote in April that the changes to the 702 statute mean that “any U.S. company’s communications could be intercepted by a landlord with access to office wiring.” or the data centers in which their computers are located,” thereby expanding the 702 program “to a variety of new contexts where there is a particularly high likelihood that communications from U.S. citizens and other persons in the United States.” “inadvertently” acquired by the government.”
