The votes by 19 conservative lawmakers to tank government surveillance legislation on Wednesday was the culmination of a decade of efforts to build a left-right alliance against warrantless spying. The rare setback for the intelligence community may only be temporary, though, and the federal government could soon enjoy far broader surveillance powers.
Fresh off an embarrassing defeat, Speaker Mike Johnson (R-La.) has regrouped and is moving to advance the legislation — which would reauthorize Section 702 of the Foreign Intelligence Surveillance Act — on the House floor again on Friday. Lawmakers will consider one modest reform to the surveillance program as well as three measures that privacy experts say would vastly expand the government’s spying powers.
One amendment would greatly increase suspicionless surveillance of immigrants — and do so at a worrying time, as Donald Trump nears a potential return to the White House on a pledge to lead an unprecedented crackdown against immigrants. Another amendment could allow agencies to force broad swaths of businesses to turn over electronic communications to the government.
“This ‘immigrant travel vetting’ provision would harm immigrants and U.S. citizens by expanding the warrantless surveillance of foreign-born persons seeking visas or other permission to travel to the United States, creating a new form of ‘extreme vetting’ that could have significant ramifications for the immigration system,” the American Immigration Council wrote in a recent letter, adding: “Allowing the suspicionless search of records of foreign students, workers, and family members of U.S. citizens, could open the door for the executive branch to surveil immigrants based on improper reasons, such as their ideology or political beliefs.”
Julie Mao, deputy director of the advocacy group Just Futures Law, tells Rolling Stone that the travel vetting provision would offer a “political endorsement from Congress” for the Homeland Security Department to use the National Security Agency’s surveillance capabilities to “go after immigrants and their American communities.” She adds the language contains no guardrails.
“Particularly in light of a potential return to the Trump administration, we should all be concerned about how this vetting program could be abused in the future to ramp up family separation and deportations — with little recourse,” she says. “This amendment could vastly increase the number of visa and other immigration applications denied on secretive grounds, permanently separating U.S. families.”
Trump, for his part, appeared to weigh in against the Section 702 reauthorization this week. “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!” Trump posted on Truth Social.
The other amendment would vastly expand the types of businesses that the government could compel to turn over electronic communications to the government. Marc Zwillinger, a lawyer designated as one of nine special amici advisors at the FISA Court, recently wrote that the businesses covered by the provision “would include, for example, the owners and operators of facilities that house equipment used to store or carry data, such as data centers and buildings owned by commercial landlords, who merely have access to communications equipment in their physical space.”
Zwillinger added the provision “could also include other persons with access to such facilities and equipment, including delivery personnel, cleaning contractors, and utility providers.”
While Section 702 is supposed to be limited to foreign surveillance targets, there’s ample evidence that U.S. citizens’ communications get swept up in the warrantless spying program — and queried without good reason.
As the American Immigration Council notes, the push to expand the government’s warrantless surveillance power comes after “Section 702 was misused by the FBI to target Black Lives Matter protestors after George Floyd’s murder.” Agencies within the Homeland Security Department have also “surveilled immigrant rights protestors” and “racial justice protestors,” the letter notes.
Last year, the FISA Court disclosed that the government conducted 278,000 improper “queries of raw FISA-acquired information” over the span of several years, according to Reuters. Some of the violations involved queries about attendees at the violent riot at the U.S. Capitol on Jan. 6, 2021, and the protest that preceded it.
The amendments to expand Section 702 have been pushed by leaders in the House Permanent Select Committee on Intelligence (HPSCI). Late last year, according to a report in Wired, HPSCI chairman Mike Turner (R-Ohio) gave a presentation to Republican staffers that showed a picture of Americans protesting Israel’s war in Gaza — implying they may have had ties to Hamas — in order to argue against proposed FISA reforms.
One proposed reform to the program will get a vote Friday: a measure to end the “backdoor search loophole,” by which agencies can query an enormous database for Americans’ international communications looking for foreign intelligence information.
The Biden administration has come out against the amendment, saying it would “rebuild a wall around, and thus block our access to, already lawfully collected information in the possession of the U.S. government,” adding “the extensive harms of this proposal cannot be mitigated.”
Travis LeBlanc, a member of the Privacy and Civil Liberties Oversight Board, an independent watchdog agency, said last year that there are “minimal to negligible examples of the value” of these backdoor searches.
Johnson, the Republican House leader, has excluded a key measure sought by FISA reformers in the list of items up for a vote on Friday: an amendment to close the “data broker loophole,” by which the government can purchase Americans’ personal data from data brokers that it would otherwise need a warrant to obtain.
“The mere possibility that Trump could be president next year makes it unconscionable for any Democrats to join Mike Turner and push to expand warrantless surveillance this recklessly,” says Sean Vitka, policy director at Demand Progress.