‘Surrogate Spies’: Massive Expansion Of Gov’t Surveillance Powers Buried In House Intel Committee Bill, Experts Say

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  • A House Intelligence Committee bill, up for a potential vote on Tuesday, could significantly enhance the federal government’s surveillance powers, experts cautioned.
  • The legislation, introduced by Republican Ohio Rep. Mike Turner and Democratic Connecticut Rep. Jim Himes, aims to modify Section 702 of the Foreign Intelligence Surveillance Act (FISA) and would alter the definition of “electronic service communications provider” to cover “equipment that is being or may be used to transmit or store such communications,’’ encompassing any location providing internet access for compelled surveillance, according to experts.
  • “These changes would vastly widen the scope of businesses, entities, and their affiliates who are eligible to be compelled to assist 702 surveillance,” according to law firm Zwillgen’s Founder Marc Zwillinger, and Legal Director Steve Lane.

A massive expansion of federal government surveillance powers lies deep within a House Intelligence Committee bill that could face a vote as soon as Tuesday, experts warned.

The bill, dubbed the “FISA Reform and Reauthorization Act of 2023,” would reform Section 702 of the Foreign Intelligence Surveillance Act (FISA), which has come under intense scrutiny amid allegations that the tool has been knowingly abused by the FBI. It would alter the definition of “electronic service communications provider” to include ‘‘equipment that is being or may be used to transmit or store such 11 communications,’’ which would include any entity or business that offers an internet connection, thereby drastically increasing surveillance authorities, according to experts.

“Under Section 504 of the House intelligence committee’s bill, any entity that has access to *equipment* on which communications may be transmitted or stored, such as an ordinary router, is fair game,” according to Co-Director of the Liberty and National Security Program Elizabeth Goitein. “What does that mean in practice? It’s simple… Hotels, libraries, coffee shops, and other places that offer wifi to their customers could be forced to serve as surrogate spies. They could be required to configure their systems to ensure that they can provide the government access to entire streams of communication.”

“These changes would vastly widen the scope of businesses, entities, and their affiliates who are eligible to be compelled to assist 702 surveillance,” according to law firm Zwillgen’s Founder Marc Zwillinger and Legal Director Steve Lane.

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The bill would barely restrict any searches of Americans, if any, according to Attorney Gene Schaerr.

“The bill’s marquee ‘reform’ is the prohibition of only a handful of searches or ‘queries’ of information about Americans under Section 702,” Schaerr wrote. “The type of search the bill would prohibit is ‘evidence-of-a-crime only’ queries. But in 2022, out of over 200,000 queries of Americans’ data, there were only two instances of the FBI accessing Section 702 data under this rubric. And even if that prohibition were in place, the FBI could easily evade it simply by claiming in every instance that agents were looking for some (hypothetical) terror threat in addition to possible crimes.”

The Protect Liberty and End Warrantless Surveillance Act (PLEWSA), a rival bill put forward by the House Judiciary Committee and spearheaded by Republican Arizona Rep. Andy Biggs, could also be up for a vote Tuesday. The legislation would sharply limit the government’s powers under Section 702 by requiring a warrant for any searches in the U.S., according to its text.

Privacy advocates support PLEWSA while former national security officials support the FISA Reform and Reauthorization Act of 2023, according to The New York Times.

“We must overhaul Section 702,” Biggs told the Daily Caller News Foundation. “For years, the intelligence community has abused this spying authority to conduct hundreds of thousands of warrantless, mass surveillance searches on Americans.”

“My bill — PLEWSA — ends the warrantless surveillance of Americans and combats the weaponization of the federal government,” Biggs added. “Without implementing the serious reforms found in my legislation — including requiring a warrant for all U.S. searches and closing loopholes involved in backdoor searches — our Fourth Amendment rights will be all but gone.”

Republican Ohio Rep. Mike Turner and Democratic Connecticut Rep. Jim Himes introduced the bill and Turner’s press office told the DCNF it would not give authority for the intelligence community to target Americans with surveillance without a warrant.

“The allegation that the FISA Reform and Reauthorization Act of 2023 expands the program’s reach to target Americans is categorically false,” Himes told the DCNF. “Section 504 is a narrow modification intended to modernize the statute to ensure it remains relevant to ever-evolving communication technologies. As with all portions of Section 702, the government is only permitted to use the authority to target specific foreign targets based overseas, and all of the protections built into the statute by Congress and enforced by the FISA Court will remain in place. Arguments otherwise are either misinformed or disingenuous.”

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