Portside

The US House of Representatives agreed to reauthorize a controversial spying law known as Section 702 of the Foreign Intelligence Surveillance Act last Friday without any meaningful reforms, dashing hopes that Congress might finally put a stop to intelligence agencies’ warrantless surveillance of Americans’ emails, text messages and phone calls.

The vote not only reauthorized the act, though; it also vastly expanded the surveillance law enforcement can conduct. In a move that Senator Ron Wyden condemned as “terrifying”, the House also doubled down on a surveillance authority that has been used against American protesters, journalists and political donors in a chilling assault on free speech.

Section 702 in its current form allows the government to compel communications giants like Google and Verizon to turn over information. An amendment to the bill approved by the House vastly increases the law’s scope. The Turner-Himes amendment – so named for its champions Representatives Mike Turner and Jim Himes – would permit federal law enforcement to also force “any other service provider” with access to communications equipment to hand over data. That means anyone with access to a wifi router, server or even phone – anyone from a landlord to a laundromat – could be required to help the government spy.

The Senate is expected to vote on the House bill as soon as this week, and if it passes there, Joe Biden is likely to sign it. All Americans should be terrified by that prospect.

Section 702 is supposedly a foreign intelligence tool that allows the US government to surveil the communications of non-US citizens abroad without a warrant. But as many civil liberties groups have pointed out, intelligence agencies like the FBI also use it as a warrantless spying tool against Americans. The FBI abused its authority under the law no fewer than 300,000 times in 2020 and 2021, according to a ruling from a Fisa court judge. In arguing for the reauthorization of Section 702 late last year, Turner, chair of the House intelligence committee, shockingly suggested in a closed-door briefing that the law could be used to spy on Americans protesting against the war in Gaza.

It’s not supposed to be that way. In most cases, the fourth amendment requires the government to have a court-approved warrant to obtain an American’s communications. But intelligence agencies have used Section 702 as a loophole that allows them to vacuum up and comb through communications between an American and a foreigner who can be targeted under the law – all without a warrant.

The House didn’t just fail to reform Section 702. It voted to grant intelligence agencies expansive new surveillance powers. The Turner-Himes amendment would allow them to deputize ordinary Americans and businesses as government spies. When privacy advocates raised alarms about the Stasi-like powers this would create, lawmakers like Himes brushed them off without a substantive response. The proposed expansion deserves an explanation. The US government has a long history of abusing its existing surveillance powers. It would be naive to think it wouldn’t abuse new ones.

While the Turner-Himes amendment lists some business types that are excepted from the requirement to help spy – like dwellings and restaurants – an almost limitless number of entities that provide wifi or just have access to Americans’ devices could be roped into the government’s surveillance operations. Using the wifi in your dentist office, hiring a cleaner who has access to your laptop, or even storing communications equipment in an office you rent could all expose you to increased risk of surveillance.

The Turner-Himes amendment would also make it harder to push back on abusive surveillance practices, including those targeting first amendment rights. Take, for example, the surveillance of journalists. Big tech companies may sometimes resist government orders to spy on news outlets. They command armies of lawyers, receive Section 702 orders frequently, and have a commercial incentive to at least appear to care about their customers’ privacy concerns. But what hope could a news organization have that its cleaning crew, for instance, will want to take on the federal government on its behalf?

The FBI’s abuses of Section 702 violate Americans’ privacy and often threaten their first amendment rights. A declassified report from 2023, for example, revealed that the FBI had used Section 702 to investigate Black Lives Matter protesters. Section 702 has also been used to spy on American journalists, weakening their first amendment right to report the news by undermining their ability to speak with foreign sources confidentially – something reporters must do frequently.

In response to these and other abuses, many reformers argue that Section 702 should be reauthorized only with real reforms that would rein in government spying, such as requiring the government to get a warrant before it can access Americans’ communications. Johnson himself initially attempted to weaken Fisa’s surveillance provisions in an effort to satisfy the hardline rightwingers in his caucus and Donald Trump. He did not succeed. The House voted to reauthorize Section 702 without adding a warrant requirement.

The fact that Section 702 has been used so often against the exercise of first amendment rights – including those of journalists – makes it both shocking and inexplicable that so many news outlets continue to support it. The Wall Street Journal, Washington Post and Chicago Tribune have all published editorials in recent days cheering the demise of the warrant requirement and urging Congress to reauthorize the law. But the House vote wasn’t just a reauthorization. It was a drastic, draconian expansion of the government’s surveillance powers.

Some of these editorials scoff at Trump’s recent nonsensical social media post criticizing Section 702 and frame the anti-surveillance crowd as a ragtag bunch of fringe rightwingers, ignoring that lawmakers and civil liberties organizations across the political spectrum opposed extending Fisa without reforming it. They also ignore the real threats Section 702 poses to Americans’ privacy rights and first amendment interests, especially if a future administration is determined to surveil and chill its opponents.

Thankfully, it’s not too late for the Senate to prevent these future abuses. In the face of the pervasive past misuse of Section 702, the last thing Americans need is a large expansion of government surveillance. The Senate should reject the House bill and refuse to reauthorize Section 702 without a warrant requirement. Lawmakers must demand reforms to put a stop to unjustified government spying on Americans.