House Proposal Would Expand Federal Warrantless Spying Authority

One bill set to be considered would grow the scope of federal digital surveillance and would authorize the federal government to use those powers against more individuals.

The House of Representatives could vote this week on a bill to greatly expand federal digital surveillance powers—potentially broadening both the scope of electronic communications to be scooped up and giving law enforcement more opportunities to access that data.

Edward Snowden, who exposed parts of this same federal surveillance apparatus in 2013, called the new proposal "the biggest encroachment on your privacy rights since the Patriot Act" in a post on X (formerly Twitter). Civil libertarian groups have roundly criticized the bill and are encouraging lawmakers to vote against it.

That bill, the FISA Reform and Reauthorization Act of 2023, is one of two measures aiming to make changes to Section 702 of the Foreign Intelligence Surveillance Act (FISA) that could be brought to the House floor on Tuesday. Section 702, created after 9/11, allows federal intelligence agencies to vacuum up communications between Americans and foreigners. Under some circumstances, law enforcement is allowed to query the Section 702 database, which includes an unknown amount of "incidental" data pulled from Americans' online communications with foreigners.

Section 702 is set to expire at the end of the year, and recent revelations about how the FBI has misused the spying program have raised hopes that Congress might rein in the program.

Despite its name, however, the FISA Reform and Reauthorization Act appears to expand, not reform, the program.

One portion of the bill "vastly expands the universe of U.S. businesses that can be conscripted to aid the government in conducting surveillance," Elizabeth Goitein, director of the national security program at the Brennan Center, a liberal think tank, posted on X.

Currently, the federal government can compel only businesses that have direct access to digital communications—telecom providers, internet service providers, and the like—to turn over that data to the Section 702 database. Under the terms of the House proposal, however, any business or entity that has access to telecom or internet equipment could be forced to participate in the federal government's digital spying regime.

"Hotels, libraries, coffee shops, and other places that offer wifi to their customers could be forced to serve as surrogate spies," writes Goitein.

That change would "effectively overrule" a recent decision from the Foreign Intelligence Surveillance Court (FISC), the secret court that reviews America's spying programs, write Steve Lane and Marc Zwillinger, two lawyers with experience arguing before the FISC.

"The new definition," Lane and Zwillinger argued in a post on a legal blog connected to Zwillinger's law firm, "could give the government warrantless access to any communication system in America through which any one-side-foreign communication could be found."

The FISA Reform and Reauthorization Act would also expand how the government uses its Section 702 database.

Specifically, the bill would add a new provision to authorize Section 702 investigations as part of the process of "vetting of all non-United States persons who are being processed for travel to the United States."

"This new authority proposes to give immigration services the ability to audit entire communication histories before deciding whether an immigrant can enter the country," writes India McKinney, director of federal affairs for the Electronic Freedom Foundation (EFF), which opposes the bill. "This is a particularly problematic situation that could cost someone entrance to the United States based on, for instance, their own or a friend's political opinions—as happened to a Palestinian Harvard student when his social media account was reviewed when coming to the U.S. to start his semester."

Again, that provision of the bill seems to directly overrule the FISC, which has repeatedly struck down attempts by federal officials to expand Section 702 surveillance to include greater scrutiny of immigrants, McKinney notes.

Lawmakers who might be skeptical of such a broad expansion of federal spying powers will have the chance to back a different bill on the House floor.

While the House Intelligence Committee was drafting this bill last week, the House Judiciary Committee advanced its own FISA reauthorization measure: The Protect Liberty and End Warrantless Surveillance Act. As the name suggests, the Judiciary Committee proposal aims to curtail the abuse of Section 702 by requiring law enforcement to obtain a warrant before snooping through Americans' communications contained in the program's database. The bill would also prohibit law enforcement agencies from purchasing information that they'd normally need a warrant to access, EFF notes, closing a major loophole in the current FISA law.

Speaker of the House Mike Johnson has promised to allow supporters of both bills to make their cases on the House floor. That's an encouraging sign about how he intends to run the chamber and creates an important moment. There's hardly ever been an open, democratic debate in Congress about the post-9/11 surveillance state—indeed, some members of Congress and most of the general public likely wouldn't even know about this stuff if not for Snowden's leaks.

It's long past time for that to happen—and for lawmakers who think we need even more digital surveillance to put their names on the record for voters to judge.