April 19, 2024

Wyden Urges Senate to Reject Expansion of FISA 702 Surveillance

Watch a video of Wyden deliver his remarks here

As prepared for delivery

I rise today to describe what happened at the end of the House debate on Section 702 and the sweeping new surveillance authorities that were slipped into the bill by the chair of the House Intelligence Committee.  Then I’m going to respond to all of the arguments that were given to justify these expanded authorities in this provision and why they don’t hold water.

The chair of the House Intelligence Committee called his amendment merely “technical” – which, as I will explain, it is not – and it passed the House with almost no debate.  And now, members of the Senate are being told the same thing.  “Nothing to see here,” “it’s technical,” “it’s all classified so stop asking questions.”

But I ask my colleagues to read the plain language of the provision.  If they do, they will see for themselves that this is actually an incredibly dangerous expansion of warrantless surveillance authorities.

Under this provision, there would be practically no limits to who can be forced into spying for the government.  Any company that installs, maintains, or repairs wifi or other communications systems in any American business, home, or church can be dragged into this. 

So can any other company that provides a service that gives its employees access to any communications “equipment,” including a server, a wire, a cable box, a wifi router, a phone or a computer.

There are so many examples.  Every office building in America has data cables running through it.  Tens of thousands of commercial establishments offer wifi to their customers. 

Under this provision, landlords, the companies that maintain the cables and wifi, and any number of companies whose employees have access to any of that equipment can all be forced to cooperate with the government’s surveillance. 

Now there have been some pretty desperate and misleading efforts to defend this provision.  So I will address each of the arguments I’ve heard in support of this dangerous expansion of surveillance authorities.

First, supporters of this provision just wave away the actual language of this provision, insisting that none of these terrible things will happen.  But no one has even tried to explain why the plain language of this provision wouldn’t authorize the government to force a huge number of ordinary Americans and American companies to spy for the government.

Second, the administration says it’s going after a narrower set of companies, but they can’t talk about it because it’s all secret.  That’s not how laws, especially surveillance authorities, should be written.  I’m a member of the Intelligence Committee and am familiar with the classified issues.  The sky is not falling.  If the government really has a narrower intent, Congress can take the time to consider whether legislation is needed to actually address it.  But jamming through a last minute provision that dramatically expands surveillance authorities in a way that could affect almost any American  is the height of irresponsibility. 

And anyone who thinks that the government won’t eventually use its FISA authorities to the greatest extent possible has been asleep for the last twenty years.

Third, supporters of this provision point to the exceptions.  But the handful of narrow exceptions only proves my point – if you’re not on that short list, you can be forced to spy for the government.

And the exceptions themselves are clearly designed so as not to constrain these vast new authorities in any meaningful way.  They are not even designed to work! 

For example, the exceptions do not include commercial landlords or any company that installs, maintains, or repairs wifi or communications cables.  So even if the government can’t force a coffee shop to comply, it can force its landlord, or the company that maintains the coffee shop’s wifi to comply. 

Fourth, supporters of this provision have said, over and over again, that Section 702 only targets foreigners overseas.  But that is a red herring.  This provision does not change the targeting rules, but it dramatically changes who can be forced to help the government. 

And you don’t have to change the targeting rules to threaten Americans’ privacy.  If the government thinks that its foreign targets are communicating with people in the United States they could go right to the source – the wifi, the phone lines, the servers that transmit or store those communications. 

That’s a stunning expansion of the government’s ability to collect Americans’ communications, without any changes to the targeting authority. 

That brings me to a letter sent yesterday by the Department of Justice, which the Chairman of the Intelligence Committee placed in the record.  

I urge my colleagues to read it carefully.  It goes on and on about how the bill doesn’t change the fact that only foreigners overseas can be “targeted.”

The surest sign that you’re losing an argument is when you try to change the subject.  And that’s what supporters of this provision and the Department of Justice are doing.

The DOJ letter does not deny that the provision authorizes the government to force a broad set of Americans and American companies to assist with warrantless surveillance under Section 702.  In fact, DOJ basically concedes this fact by promising that it will only apply the new authorities to certain companies on a secret list.  ‘Don’t worry,’ DOJ says, ‘we won’t ever use these sweeping authorities you are handing to us.’ 

That commitment is worth exactly nothing.  It is not even binding on this administration.  And it certainly isn’t binding on the next administration.  These FISA authorities, like all FISA authorities, will eventually be used to their maximum extent.  And – you can bet on it – the same members of Congress who are touting this supposed act of restraint from the administration will be the first ones to demand that the government do more with these authorities.

To repeat the obvious, secret promises are not law. And giving the government vast new power on the premise that intelligence agencies will never actually use it is simply naive.

One other point about the DOJ letter.  DOJ has promised to tell Congress what is going on only every six months.  Not only is that woefully inadequate, it would be a violation of the government’s statutory obligation to keep Congress fully and currently informed of intelligence activities.  If they only updated Congress every six months they would be thumbing their nose at congressional oversight.

This provision is fundamentally damaging to democracy. Americans should not be forced to spy for the government without a warrant. 

Ordinary businesses, big and small, should not be made extensions of government surveillance in ways that put at risk their relationships with their customers. Americans should not have to worry about whether the companies that service their workplaces, the establishments they frequent, or even their homes are secretly spying for the government.

What has happened here is truly breathtaking.  Until just a week ago, we were all debating reforms of Section 702.  We may disagree on what reforms are necessary, but we were at least all talking about the abuses of Section 702 and how to fix them. 

Now, suddenly, the Senate is being asked to dramatically expand 702 authorities in ways that are almost guaranteed to result in extensive abuses. 

It is genuinely shocking that, with no public justification, no hearings, no mark-ups, and a single week to even think about it, the U.S. Senate has been asked to give the government sweeping new authorities that could fundamentally change the relationship between Americans and their government.

If the Senate passes this legislation today, senators will regret it. And when the eventual wave of abuses is exposed, no one will be able to claim they didn’t see it coming.  I urge my colleagues to support the Wyden-Lummis amendment striking this dangerous provision.