On Wednesday, the National Defense Authorization Act (NDAA) was passed by the US Senate, after congressional leaders removed provisions aimed at protecting against excessive government surveillance. The bill, which is considered a “must-pass” legislation, will now go to President Joe Biden for his expected signature.
The Senate’s 85-14 vote solidifies a significant expansion of the controversial US surveillance program, Section 702 of the Foreign Intelligence Surveillance Act (FISA). Once signed by Biden, this will give the Trump administration the power to compel a wide range of companies to assist in wiretapping calls between Americans and foreigners abroad.
Despite concerns about the potential misuse of these expanded spy powers, particularly by individuals like Kash Patel, who has expressed a desire to investigate Donald Trump’s political opponents if confirmed as FBI director, Democrats did not make much effort to rein in the program.
The Senate Intelligence Committee had initially approved changes to the 702 program in the summer, with an amendment aimed at clarifying vague language that experts had deemed dangerous. This vague text was added to the law by Congress in April, with Democrats promising to address the issue later in the year. However, these efforts proved to be unsuccessful.
Legal experts had raised concerns about Congress’s efforts to expand FISA to cover a wide range of new businesses that were not originally subject to Section 702’s wiretapping directives. In April, when the program was reauthorized, Congress changed the definition of “electronic communications service provider,” a term used for companies that can be compelled to install wiretaps on behalf of the government.
Traditionally, this term referred to phone and email providers like AT&T and Google. However, with the new definition, it is unclear which businesses will now be subject to government demands for wiretapping. It is believed that these changes were made to allow the National Security Agency (NSA) to target communications stored on servers at US data centers. However, due to the classified nature of the 702 program, the updated text does not specify which types of businesses will be affected.
Marc Zwillinger, one of the few private attorneys to testify before the nation’s secret surveillance court, warned in April that these changes could mean that “any US business could have its communications intercepted by a landlord with access to office wiring, or the data centers where their computers reside.” This would expand the 702 program “into a variety of new contexts where there is a high likelihood that the communications of US citizens and other individuals in the US will be inadvertently acquired by the government.”
Despite these warnings, Senate Democrats rushed to reauthorize the 702 program.
