Privacy defenders decry 'spy draft' in Section 702 renewal advanced by Senate

Civil liberties defenders on Thursday decried the U.S. Senate's advancement of the Reforming Intelligence and Securing America Act, which critics say lawmakers are trying to ram through without protection against warrantless surveillance and with a provision that would effectively make every American a spy whether they like it or not.

Senators voted 67-32 in favor of a cloture motion to begin voting on RISAA, a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which expires on Friday. FISA—a highly controversial law that has been abused hundreds of thousands of times—allows warrantless surveillance of non-U.S. citizens but also often sweeps up Americans' communication data in the process.

In a 273-147 vote last week, House lawmakers passed RISAA, including an amendment critics say dramatically expands the government's unchecked surveillance authority by compelling a wide range of individuals and organizations—including businesses and the media—to cooperate in government spying operations.

This so-called "Make Everyone a Spy" clause would allow the attorney general or director of national intelligence to force electronic communication service providers to "immediately provide... all information, facilities, or assistance" the government deems necessary.

"This bill would basically allow the government to institute a spy draft," Seth Stern, director of advocacy at Freedom of the Press Foundation, warned Thursday. "It will lead to significant distrust between journalists and sources, not to mention everyone else."

"It's not about who RISAA allows the government to spy on, it's about who RISAA allows the government to force to spy," he added. "Regardless of whether the end target of the surveillance is a foreigner, it's indisputable that the people the government can enlist to conduct the surveillance are Americans. And what's more, these civilians ordered to spy would be gagged and sworn to secrecy under the law."

In addition to the "Make Everyone a Spy" provision, civil libertarians have sounded the alarm over the House lawmakers' rejection of an amendment that would have added a warrant requirement to the legislation.

Critics accuse Senate Majority Leader Chuck Schumer (D-N.Y.) and colleagues including Senate Intelligence Committee Chair Mark Warner (D-Va.) of trying to rush a vote on RISAA while disingenuously claiming Section 702's powers will expire with the law on Friday. That's a misleading claim, as a national security court earlier this month approved the government's request to continue a disputed surveillance program even if Section 702 lapses.

"There is simply no defense of Majority Leader Schumer and Sen. Warner's duplicity," Sean Vitka, policy director at the progressive advocacy group Demand Progress, said in a statement. "House Intelligence Committee leaders poisoned this bill with one of the most repugnant surveillance expansions in history, and apparently the administration was too busy attacking commonsense privacy protections to notice. They know it, we know it, and now the American people know it."

"There can be no mistake: Sens. Schumer and Warner just helped hand the next president an unspeakably dangerous weapon that will be used against their own constituents," Vitka added. "And there is only one vote left to stop it."

Sen. Ron Wyden (D-Ore.)—who said earlier this week that the bill would dragoon the American people into becoming "an agent for Big Brother"—on Thursday argued that "this issue demands a debate about meaningful reforms, not a rushed vote to rubber-stamp more warrantless government surveillance powers."

In an attempt to tackle the warrantless surveillance issue, Senate Judiciary Chair Dick Durbin (D-Ill.) and Sen. Kevin Cramer (R-N.D.) on Thursday proposed a RISAA amendment that would require the government to obtain a warrant from the Foreign Intelligence Surveillance Court before accessing Americans' private communications.

However, the amendment contains exceptions to the warrant requirement in the event of unspecified emergencies and cyberattacks.

"If the government wants to spy on the private communications of Americans, they should be required to get approval from a judge—just as our Founders intended," Durbin said in a statement. "Congress has a responsibility to the American people to get this right."

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The Biden administration and U.S. intelligence agencies vehemently oppose the Durbin-Cramer amendment. The White House called the measure "a reckless policy choice contrary to the key lessons of 9/11 and not grounded in any constitutional requirement or statute."

"The amendment outright bars the government from gaining access to lawfully collected information using terms associated with U.S. persons," the administration added. "Exceptions to that prohibition are narrow and unworkable. They are insufficient to protect our national security."

On Wednesday, the House also passed the Fourth Amendment Is Not for Sale Act, which would prohibit the government from buying Americans' information from data brokers if it would otherwise need a warrant to obtain the data, which includes location and internet records. The Senate will now take up FANFSA.