Last week, the House of Representatives passed a bill that would greatly expand warrantless surveillance. Critics worry the legislation could empower the government to spy on journalists and compromise their confidential sources with ease — a concerning prospect that could feel far more troublesome if Donald Trump gets elected president again.
The legislation, which would reauthorize Section 702 of the Foreign Intelligence Surveillance Act, includes a provision that would broaden the types of businesses that agencies can compel to help the government spy without a warrant. A Biden administration fact sheet says the provision is “crucial to allow intelligence agencies to collect intelligence on significant foreign threats, and to prevent foreign adversaries from exploiting changes in technology.” The fact sheet says the change closes “a dangerous loophole,” and calls it a “carefully crafted and narrowly tailored fix.”
But experts say the provision is extremely broad — and that it could potentially allow agencies to enlist office landlords, security guards, and cleaning crews as spies, without a warrant, and demand they help the government tap into communications equipment to facilitate data collection.
“The exception for warrantless surveillance was supposed to be narrow, and not as broad as where a FISA warrant is required, and now the government wants to make sure more and more content is available using 702 process,” Marc Zwillinger, a FISA expert and lawyer on national security issues, tells Rolling Stone. “It’s like wanting the ‘easy mode’ for all things, which is especially troublesome if non-communication providers who have never needed to pay attention to this process are getting directives for the first time.”
The change could have significant ramifications for media outlets, big and small, as many newsrooms’ journalists are often in regular contact with foreign sources who have foreign intelligence information. Journalists, of course, have a professional and ethical obligation to protect confidential sources.
“Under the new language, if the government cannot get what they want by going to your email provider or telecommunications provider, they could go to the landlord of your building, where your office is, and say, I know that people in these offices sometimes talk to someone foreign that we are targeting, please give us access to the communication infrastructure in your building where Rolling Stone’s outgoing communications might be found,” says Zwillinger. “Previously, this would have required a warrant from the FISA court approving both the targeting and the assistance. Now, in theory, it can be done under 702.”
Zwillinger is not the only expert sounding the alarm about this provision. Sen. Ron Wyden (D-Ore.) issued a statement calling the House bill “one of the most dramatic and terrifying expansions of government surveillance authority in history.”
Sen. Jeff Merkley (D-Ore.), Wyden’s counterpart, tells Rolling Stone in a statement that the House surveillance reauthorization “fails to include any meaningful reforms to the program” and “includes virtually no safeguards to prevent, and in fact potentially expands pathways for, unwarranted surveillance on Americans.” He adds, “To protect our civil rights and liberties and the freedom of the press, I will continue to speak out against the dangers of a national surveillance state and push my colleagues to take strong action to safeguard these freedoms.”
Seth Stern, director of advocacy at the Freedom of the Press Foundation, warns Rolling Stone that the House bill “would let intelligence agencies commandeer countless American businesses and individuals to spy on journalists and their sources on the government’s behalf.”
Although Section 702 is supposed to be limited to foreign targets, U.S. citizens’ communications are swept up in the warrantless surveillance program — and are often queried without good reason, critics say.
Trump appeared to weigh in against the Section 702 reauthorization last week, claiming that FISA was “illegally used against me and many others.” However, if the bill passes and Trump were to win the election, the former president would enjoy expansive new powers that could aid a second MAGA administration as he and his allies work to target their political enemies, including in the media.
Indeed, both in public and behind closed doors, Trump and some of his closest loyalists keep saying that that is precisely what they hope and plan to do, should he defeat President Joe Biden this year.
“We will go out and find the conspirators — not just in government, but in the media. Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections,” former Trump administration official Kash Patel, who is widely expected to get a senior role if Trump returns to the White House, said on fellow former Trump official Steve Bannon’s podcast late last year. (Patel, Bannon, and of course Trump have all aggressively pushed anti-democratic lies about the 2020 election, which Trump decisively lost, being “stolen.”)
At Trump’s rallies, the ex-president and presumptive 2024 GOP nominee has trotted out a recurring laugh-line about sending journalists to prison — so that they can get raped and tortured into giving up confidential information about their sources. “You tell the reporter, ‘Who is it?’ … and if the reporter doesn’t want to tell you, it’s ‘bye bye.’ The reporter goes to jail,” Trump said at an Ohio rally in 2022. “When the reporter learns he’s going to be married to a certain prisoner who’s extremely strong, tough, and mean, he will say: ‘You know, I think I’m going to give you the information.’”
As Rolling Stone reported in 2022, the former president has privately solicited ideas from attorneys and some of his other close GOP allies on how a fully Trumpified Department of Justice could go about jailing certain reporters for (supposedly) breaking national security laws. “[Trump] said other countries do it — the implication being: Well, why not here?” a source, who was present at one such gathering, recounted at the time.
The House surveillance bill could provide a potential Trump administration with a new weapon to crack down on the media.
An amendment added to the bill, with bipartisan support, would change the definition of a covered “electronic communication service provider” under FISA to include “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.”
In effect, this could mean expanding the definition to include any service providers, besides those whom it specifically exempts, such as community facilities, hotels, apartment buildings, and restaurants. All that would be required is that those service providers have access to electronic communications equipment or wires that an agency believes may show communications with a foreigner with foreign intelligence information.
Zwillinger, the national security lawyer, says it’s important to consider the surveillance legislation in the context of Trump, or another figure like him, potentially serving as commander in chief.
“If somebody tells you, we’re going to exercise this power responsibly, that doesn’t mean the next person will,” he says. “So you have to worry about the statutes in light of a different type of executive. It’s simply not enough for this government to reassure the public that they’re not going to use this process in this more expansive way. The law has to be worried about the Donald Trumps of the world who may try to use it in the most expansive way against their enemies.”
The surveillance legislation could get a Senate vote as early as Wednesday. The Section 702 program is set to lapse on Friday.
“It’s imperative for the Senate to clean up this mess,” says Stern, the Freedom of the Press Foundation official. “Sources don’t talk to journalists when journalists can’t protect their confidentiality. That means the public is less informed, and democracy suffers. If the Senate passes this horrifying expansion of the government’s surveillance authority, that’s exactly what will happen.”
Sean Vitka, policy director at Demand Progress, says that “with the specter of another Trump administration, we need to see clearly the ways this would be wielded to go after political opponents, the press, and countless others — all of which could be done with devastating effect but no court approval.”
Rep. Maxwell Alejandro Frost (D-Fla.), who voted against the House surveillance bill, tells Rolling Stone that while he believes Biden will win this year, “we have to legislate with an eye towards who comes after President Biden — and that person could very well be like Donald Trump, since he is the Republican Party right now.”
“That is a scary thing to me,” says Frost. “I live in a state where the government uses tools at its disposal to oppress minorities and target political enemies. So, on Capitol Hill, we should always legislate in a way that takes into account that people and presidents could easily get elected soon who would abuse powers. That is one of the reasons why I couldn’t support the bill with the 702 change.”