The Next US President Will Have Troubling New Surveillance Powers

The ability of the United States to intercept and store Americans’ text messages, calls, and emails in pursuit of foreign intelligence was not only extended but enhanced over the weekend in ways likely to remain enigmatic to the public for years to come.

On Saturday, US president Joe Biden signed a controversial bill extending the life of a warrantless US surveillance program for two years, bringing an end to a months-long fight in Congress over an authority that US intelligence agencies acknowledge has been widely abused in the past.

At the urging of the agencies and with the help of powerful bipartisan allies on Capitol Hill, the program has also been extended to cover a wide range of new businesses, including US data centers, according to recent analysis by legal experts and civil liberties organizations that were vocally opposed to its passage.

Section 702 of the Foreign Intelligence Surveillance Act, or FISA, allows the US National Security Agency (NSA) and Federal Bureau of Investigation (FBI), among other agencies, to eavesdrop on calls, texts, and emails traveling through US networks, so long as one side of the communication is foreign.

Americans caught up in the program face diminished privacy rights.

While the government requires a foreign target to commence a wiretap, Americans are often party to those intercepted conversations. And although US attorney general Merrick Garland insisted in a statement on Saturday that the updates to the 702 program “ensure the protection of Americans’ privacy and civil liberties,” and that the government never intentionally targets Americans, the government nevertheless reserves the right to store their communications and access them later without probable cause.

“Section 702 is supposed to be used only for spying on foreigners abroad,” says Dick Durbin, chair of the Senate Judiciary Committee. “Instead, sadly, it has enabled warrantless access to vast databases of Americans’ private phone calls, text messages, and emails.”

Under the law, the government can retain communications captured by the 702 program for half a decade or more—indefinitely, so long as the government makes no effort to decrypt them.

A trade organization representing some of the world’s largest tech companies came out against plans to expand Section 702 in the final hours of the debate, claiming that a new provision authored by House Intelligence Committee members would damage the competitiveness of US technologies, “arguably imperiling the continued global free flow of data between the US and its allies.”

US intelligence obtains its vast surveillance power through yearly certifications doled out by a secret court. The certifications permit the NSA in particular to force businesses in the US—categorized as “electronic communications service providers,” or ECSPs—to cooperate with the program, collecting data and installing wiretaps on the agency’s behalf.

Years ago, the government sought to unilaterally expand the definition of ECSP under the law, seeking to compel the cooperation of whole new categories of businesses. That effort was beaten back by the FISA court in 2022, in a ruling that stated only Congress has the “competence and constitutional authority” to rewrite the law.

On the spy community’s behalf, the House Intelligence Committee introduced an amendment last year to codify the sought-after expansion of the 702 program, broadening the definition of what it means to be an ECSP.

With the backing of party leaders, the House and Senate intel committees maintained an outsize influence over the bill’s trajectory through Congress, lobbying lawmakers hand-in-hand with the intelligence community to defeat a slate of popular reforms, including a House amendment that would have required the FBI to obtain search warrants before accessing the communications of Americans collected under Section 702.

The House and Senate judiciary committees, which oversee the work of the US Justice Department, have traditionally held jurisdiction over FISA. However, much of their authority was sapped after the House speaker, Mike Johnson, adopted the pro-surveillance views of the intel committee members, which align with those of the White House.

Legal experts—including a rare few attorneys who’ve argued cases before the FISA court in the past—say the new ECSP text ensnares owners of facilities housing equipment used to store and carry data, as well as commercial landlords and virtually anyone with access to communications equipment in those spaces. The text, they argue, may be interpreted by the government as granting it authority to compel the assistance of “delivery personnel, cleaning contractors, and utility providers,” among others.

Criticism of the 702 program largely stems from revelations of abuse in a declassified court filing from 2022, which describes rampant misuse of the 702 database by the FBI. Investigators at the bureau have been caught unlawfully scouring 702 data for information on American protesters, journalists, and political donors. On at least one occasion, an FBI analyst worked to access the communications of a sitting member of Congress.

The FBI instituted scores of new procedures in an attempt to clamp down on the abuse internally, practices that are now codified under the law. House and Senate intelligence members say codifying the policies will serve as a sufficient bulwark against further abuse. Civil libertarians who have pursued new warrant requirements under FISA—an amendment that was dropped after a tie vote in the House of Representatives last week—argue, conversely, that the FBI should not be trusted to oversee itself in the wake of recent scandal.

Liza Goitein, a FISA expert and senior director at the Brennan Center of Justice at New York University School of Law, says the bill signed by Biden on Saturday represents “a gift to any president who may wish to spy on political enemies.”

“Although some senators fought valiantly to protect Americans’ civil liberties, they could not overcome the barrage of false and misleading statements from the administration and surveillance hawks on the congressional intelligence committees,” says Goitein. “This is a truly shameful episode in the history of the US Congress, and sooner or later, the American people will pay the price.”