Experts worry the government was just given more cover to conduct mass surveillance

The House of Representatives’ vote last week to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA) by two years suggests the government will continue to enjoy its authority to collect the messages of Americans communicating with targeted foreigners abroad.

The FBI claims it uses Section 702 to detect and dispel national security threats abroad. But civil liberties advocates say the law effectively gives authorities cover to conduct mass surveillance operations. 

“It’s shocking the House would be so reckless to approve this poorly drafted measure,” says Jake Laperruque, deputy director of the Security and Surveillance Project at the Center for Democracy & Technology. “It 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.”

Presidents from both parties have already abused Section 702, says Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union, contending that last week’s House vote will only compound the problem. “By expanding the government’s surveillance powers without adding a warrant requirement that would protect Americans, the House has voted to allow the intelligence agencies to violate the civil rights and liberties of Americans for years to come,” she says.

The ACLU claims that FBI agents have used Section 702 to conduct millions of overly invasive searches of the communications of American citizens without warrant. They point to prior reporting that suggests the FBI has even used Section 702 to look up information about a sitting (still-unnamed) U.S. senator.

By definition, Section 702 is designed to target foreign adversaries who are up to no good. But some experts fear that just as law-abiding American citizens can be snooped upon under its overly broad provisions, foreign citizens who have done no wrong could also find themselves under the FBI’s microscope without knowing.

Beyond the borders of the United States, the Center for Democracy & Technology’s Laperruque worries that the law will penalize U.S.-based providers’ ability to service global clients—because in theory anyone who physically hosts a communications server would be subject to the relevant section of the Foreign Intelligence Surveillance Act as an “electronic communication service provider.” That dragnet of potentially many unrelated businesses (such as commercial landlords whose premises have computer servers within them) would “do serious and unnecessary harm to the global competitiveness of America’s cloud service industry,” Laperruque says.

The key question is what happens next.

The vote now moves on to the Senate. As U.S. Representatives passed the two-year extension to Section 702, they did so on a technicality: The vote to amend Section 702 to require a warrant for any tapping of communications with a U.S. citizen was actually split 212 to 212, which meant spies can continue to carry out eavesdropping without a warrant. “We strongly hope the Senate will work to correct this error, and see this dangerous amendment stripped from the legislation,” Laperruque says.

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