The US Senate is set to vote this week on legislation that, at least for the next two years, could dramatically expand the number of companies the US government can force to spy on Americans without a warrant. .
Some of the country’s leading legal experts on a controversial US spy program argue that the legislation, known as the Reforming Intelligence and Security of America Act (RISAA), would enhance the spying powers of the US government, forcing a variety of startups to secretly spy on Americans. ‘ Calls, text messages and emails abroad.
Those experts include a handful of lawyers who have had the rare opportunity to appear before the US government’s secret surveillance court.
The Section 702 program, authorized under the Foreign Intelligence Surveillance Act, or FISA, was established more than a decade ago to legalize the government practice of forcing major telecommunications companies to listen in on foreign calls in the wake of terrorist attacks. of September 11, 2001. .
On the one hand, the government claims that the program is designed exclusively for foreign citizens who are physically abroad; On the other, the government has fiercely defended its ability to access wiretaps of Americans’ emails and phone conversations, often years after the fact and in cases unrelated to the reasons the wiretaps were ordered in the first place. .
The 702 program works by forcing the cooperation of American companies defined by the government as “electronic communications service providers,” traditionally telephone and email providers like AT&T and Google. Members of the House Intelligence Committee, whose leaders currently act largely as lobbyists for the U.S. intelligence community in Congress, have been working to expand the definition of that term, allowing the government to mandate new categories of companies to eavesdrop on behalf of the government.
Marc Zwillinger, a private attorney who has appeared twice before the FISA Review Court (FISCR), wrote last week that the RISAA legislation expands the definition of “electronic communications service provider” (ECSR) to include data centers and commercial owners; companies, he says, that “simply have access to communications equipment in their physical space.” According to Zwillinger, RISAA can also catch anyone “who has access to such facilities and equipment, including delivery personnel, cleaning contractors, and utility providers.”
Zwillinger had previously criticized the ECSR’s language this year, prompting House lawmakers to amend the text to explicitly exclude certain types of businesses, including hotels.
Zwillinger responded that the need for those exclusions is sufficient proof that the text is too broad; an exception that simply serves to demonstrate that the rule exists: “The breadth of the new definition is obvious from the fact that the drafters felt compelled to exclude such common places as senior centers, hotels, and coffee shops,” he wrote. “If not for these specific exemptions, the scope of the new definition would cover them, and dozens of companies that did not receive a specific exemption remain within its scope.”
This analysis quickly flooded Capitol inboxes last week, with some Capitol employees and privacy experts quietly dubbing the ECSR language the “Stasi amendment,” a reference to East Germany’s notorious secret police force. for infiltrating the industry and forcing German citizens to spy on their clients. other.