Should the government renew FISA and expand the definition of “electronic communication provider”?

Awaiting Vote
Bill Summary

H.R. 6611 renews and reforms Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 of FISA allows the government to conduct targeted surveillance of non-U.S. nationals outside the U.S. without obtaining a warrant. While Section 702 does not allow for direct surveillance of U.S. citizens, Americans’ data can still be collected when they interact with a non-American person who is under surveillance. H.R. 6611 would also expand the definition of “electronic communication provider” to include hotels, libraries, and other establishments which provide Wi-Fi to patrons. These providers are required to comply with surveillance demands if requested. Sponsor: Rep. Michael Turner (Republican, Ohio, District 10)
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Opponents say

•      "[The new definition of “electronic communication service provider”] would appear to cover data centers, colocation providers, business landlords, shared workspaces, or even hotels where guests connect to the Internet. And the addition of the term “custodian” in (4) above could be understood to sweep in any third party involved in providing equipment, storage, or even cleaning services to such entities[...] The expanded definition would also effectively restore the broad assistance provision of Section 702’s predecessor, the Protect America Act, which Congress specifically rejected when it originally enacted Section 702 as part of the FISA Amendments Act. The new definition, when combined with NSA’s ability to conduct ‘upstream collection,’ could give the government warrantless access to any communication system in America through which any one-side-foreign communication could be found." Source: FISA Court Amicus by Marc Zwillinger (Attorney)

•      "HPSCI’s FISA 702 bill has some serious, glaring problems. Most obviously, it lacks a warrant requirement for all “backdoor” searches directed at American citizens whose communications have been “incidentally collected. But there are other, less-obvious—and more troubling—problems that can be found in section 504 of the HPSCI bill. Sec. 504 expands the scope of FISA 702, in a way that would make 702 applicable to hotels, restaurants, department stores, or anyone else offering public wifi" Source: Sen. Mike Lee (Republican, Utah)

•      "Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. government engages in mass, warrantless surveillance of Americans’ and foreigners’ phone calls, text messages, emails, and other electronic communications. Information collected under the law without a warrant can be used to prosecute and imprison people, even for crimes that have nothing to do with national security. Given our nation’s history of abusing its surveillance authorities, and the secrecy surrounding the program, we should be concerned that Section 702 is and will be used to disproportionately target disfavored groups, whether minority communities, political activists, or even journalists.

Section 702 is set to expire at the end of 2023. We call on Congress to significantly reform the law, or allow it to sunset." Source: American Civil Liberties Union (ACLU)

Proponents say

•      "[Section 702] allows us to ensure the privacy of Americans; and it has oversight built in from the executive branch, the legislative branch and from the courts to ensure that we're using it properly. It is our Americans that serve every day in the national defense of the American people…And that includes their civil liberties [and] their privacy; and we will continue to be transparent about how we use this authority to defend Americans every single day [with intelligence] collection against China, against Russia, counterterrorism threats and cyber threats that face the nation every single day. " Source: Gen. Tim D. Haugh (Director, National Security Agency)

•      "We applaud the Senate’s passage of H.R. 7888, the Reforming Intelligence and Securing America Act.  This legislation, which passed the House last week and the Senate tonight with broad bipartisan support, will renew and reform Section 702 of the Foreign Intelligence Surveillance Act (FISA) – one of the United States’ most vital intelligence collection tools. The Reforming Intelligence and Securing America Act will retain essential authority to understand and protect against a wide range of dangerous threats to Americans while enhancing safeguards for privacy and civil liberties through the most robust set of reforms ever included in legislation to reauthorize Section 702." Source: Jake Sullivan (Advisor, National Security Agency) 

•      "As former officials who have either worked for or with the Intelligence community, we write today with serious concerns that a critical tool to keep Americans safe will cease to be available to the men and women who protect the United States each day. At the end of this month, Section 702 of FISA will sunset. This is one of the most critical tools the Intelligence Community has at its disposal. Section 702 must be reauthorized and, as evidenced by the FBIs flagrant abuses, FISA must be reformed. Those reforms should focus on concrete improvements– including congressional oversight of and access to FISA Court transcripts– rather than a warrant requirement that may not achieve its intended objectives and could hinder current national security efforts." Source: Open letter from Mike Pompeo, William Barr, John Ratcliffe, Robert O' Brien and David Nunes