The US Senate passed the National Defense Authorization Act (NDAA) on Wednesday after congressional leaders earlier this month withdrew the bill’s provisions designed to protect against excessive government surveillance. The “must pass” legislation now looks to President Joe Biden for his expected signature.
The Senate’s 85–14 vote cemented a major expansion of the controversial US surveillance program, Section 702 of the Foreign Intelligence Surveillance Act (FISA). Biden’s signature will ensure that the Trump administration opens up new powers to compel more companies to help US spies tap calls between Americans and foreign countries.
Despite concerns about unprecedented spying powers falling into the hands of controversial figures like Kash Patel, who has vowed to investigate Donald Trump’s political enemies if confirmed to head the FBI, Democrats have finally made a small effort to control the system.
The Senate Intelligence Committee first approved changes to the 702 bill this summer with an amendment intended to clarify new language added that experts said was dangerously vague. The vague text was introduced into law by Congress in April, with Senate Democrats promising to fix the issue later this year. In the end, those efforts were in vain.
Legal experts began issuing warnings last winter about Congress’s efforts to expand FISA to cover a wide range of new businesses not initially subject to the wiretap guidelines of Section 702. When it reauthorized the program in April, Congress changed the definition of what the government considers a “provider of an electronic communications service, ” is a term used for companies that can be forced to wiretap the government.
Traditionally, “telecommunications service providers” refer to phone and email providers, such as AT&T and Google. But with Congress redefining the term, the new limits on the government’s wiretap power are unclear.
It is widely believed that the changes were intended to help the National Security Agency (NSA) target communications stored on servers in US data centers. Because of the classified nature of the 702 program, however, the revised text intentionally avoids specifying which types of new businesses will be subject to federal requirements.
Marc Zwillinger, one of the few private attorneys who will testify before the nation’s privacy watchdog, wrote in April that changes to Section 702 mean that “any American business can have its own communications. [wiretapped] is a property owner who has access to office wires, or data centers where his computers reside,” thus expanding the 702 program “for a variety of new situations where there is a high probability that US citizens and other US persons will communicate. will be discovered by the government ‘unintentionally.’
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