Last month, US president Joe Biden signed a surveillance bill enhancing the National Security Agency’s power to compel US businesses to wiretap communications going in and out of the country. The changes to the law have left legal experts largely in the dark as to the true limits of this new authority, chiefly when it comes to the types of companies that could be affected. The American Civil Liberties Union and organizations like it say the bill has rendered the statutory language governing the limits of a powerful wiretap tool overly vague, potentially subjecting large swaths of corporate America to warrantless and secretive surveillance practices.
In April, Congress rushed to extend the US intelligence system’s “crown jewel,” Section 702 of the Foreign Intelligence Surveillance Act (FISA). The spy program allows the NSA to wiretap calls and messages between Americans and foreigners abroad—so long as the foreigner is the individual being “targeted” and the intercept serves a significant “foreign intelligence” purpose. Since 2008, the program has been limited to a subset of businesses that the law calls “electronic communications service providers,” or ECSPs—corporations such as Microsoft and Google, which provide email services, and phone companies like Sprint and AT&T.
In recent years, the government has worked quietly to redefine what it means to be an ECSP in an attempt to extend the NSA’s reach, first unilaterally and now with Congress’ backing. The issue remains that the bill Biden signed last month contains murky language that attempts to redefine the scope of a critical surveillance program. In response, a coalition of digital rights organizations, including the Brennan Center for Justice to the Electronic Frontier Foundation, is pressing the US attorney general, Merrick Garland, and the nation’s top spy, Avril Haines, to declassify details about a relevant court case that could, they say, shed much-needed light on the situation.
In a letter to the top officials, more than 20 such organizations say they believe the new definition of an ECSP adopted by Congress might “permit the NSA to compel almost any US business to assist” the agency, noting that all companies today provide some sort of “service” and have access to equipment on which “communications” are stored.
“Deliberately writing overbroad surveillance authorities and trusting that future administrations will decide not to exploit them is a recipe for abuse,” the letter says. “And it is entirely unnecessary, as the administration can—and should—declassify the fact that the provision is intended to reach data centers.”
The Justice Department confirmed receipt of the letter on Tuesday but referred WIRED to the Office of the Director of National Intelligence, which has primary purview over declassification decisions. The ODNI has not responded to a request for comment.
It is widely believed—and has been reported—that data centers are the intended target of this textual change. Matt Olsen, the assistant US attorney general for national security, appeared on an April 17 episode of the Lawfare podcast to say that, while unable to confirm or deny any specifics, data centers today store a significant amount of communications data and are an “example” of why the government viewed the change as necessary.
A DOJ spokesperson pointed WIRED to an April 18 letter by Garland that claims the new ECSP definition is “narrowly tailored.” The letter includes written reflections on the provision by the assistant attorney general, Carlos Uriarte, who writes that the “fix” is meant to address a “critical intelligence gap” resulting from changes in technology over the past 15 years. According to Uriarte, the DOJ has committed to applying the new definition internally “to cover the type of service provider at issue” before the court.
Ostensibly this means the government is promising to limit future surveillance directives to data centers (in addition to the companies traditionally defined as ECSPs).
The surveillance court that oversees FISA and the appeals court that reviews its decisions sided two years ago with an unidentified company that fought back after being served an NSA order. Both courts ruled that it did not, in fact, appear to meet the criteria for being considered an ECSP, as only part of its function was storing communications data. Finding the government’s interpretation of the statute overly broad, the court reminded the government that only Congress has the “competence and constitutional authority” to rewrite the law.
Digital rights groups argue that declassifying additional information about this FISA case may help the public understand which types of businesses are actually subject to NSA directives. Practically speaking, they say, that information is no longer a secret anyway. “Declassifying this information would cause little if any national security harm,” the letter says. “The New York Times has already revealed that the relevant FISC case addressed data centers for cloud computing.”
In the aftermath of the FISA court’s ruling, the NSA and other spy agencies began lobbying the House and Senate intelligence committees to aid the administration in redefining what it means to be an ECSP. Members of both committees have subsequently portrayed the court’s ruling as a “directive” that Congress needs to expand the NSA’s reach. In a floor speech last month, Mark Warner, the chair of the Senate Intelligence Committee, said, “So what happened was, the FISA Court said to Congress: You guys need to close this loophole; you need to close this and change this definition.”
But in fact what the court asserted was that the government had exceeded its authority and that it was Congress’ job, not the Justice Department’s, to revise the law. “Any unintended gap in coverage revealed by our interpretation is, of course, open to reconsideration by the branches of government whose competence and constitutional authority extend to statutory revision,” the court said.
This would culminate in new language being proposed that quickly alarmed legal experts, including top civil liberties attorneys who’ve appeared before the secret court in the past. The surveillance fears quickly spread to Silicon Valley. The Information Technology Industry Council, one of the tech industry's top lobbying arms, warned that companies like Facebook and IBM were interpreting the bill as having “vastly expanded the US government’s warrantless surveillance capabilities.”
This expansion, the firm added, would also hinder the “competitiveness of US technology companies” and arguably imperil the “continued global free flow of data between the US and its allies.” Customers internationally, it argued, would likely begin taking their business elsewhere should the US government turn data centers into surveillance watering holes.
Concerns about the new ECSP definition have been circulating since December. While largely dismissing them, members of the House and Senate intelligence committees made a few adjustments in February, exempting a handful of business types. This came in response to popular concerns that Starbucks employees and hotel IT staff might be secretly conscripted by the NSA. FISA experts such as Marc Zwillinger—a private attorney who has appeared twice before the FISA Court of Review—noted in response to those adjustments that Congress’ rush to exempt a handful of businesses only served to demonstrate that the text was inherently too broad.
Intelligence committee members kept the pressure on lawmakers to reauthorize the Section 702 program with the sought-after language, going as far as to suggest that another 9/11-style attack might occur if they failed. The power of the committees was on full display, as while neither actually have primary jurisdiction over FISA, a majority of the Section 702 bill that passed was authored by intelligence committee staff.
Even while supporting the new framework and dismissing the intensity of civil society’s concerns, Warner did eventually step forward to acknowledge the new ECSF definition needed additional tweaking. First, on the Senate floor in April, he said that Garland shared his “view” that the language “could have been drafted better.” Later, in response to questions from reporters, he added: “I’m absolutely committed to getting that fixed.”
That appears unlikely to happen soon. According to The Record, Warner indicated that the best time to update the language again would be in the “next intelligence bill,” presumably referring to legislation this fall broadly reauthorizing the intelligence community’s work.
In the meantime, however, more than half of Congress is running for election, and the next US president will have greater surveillance powers than any other before. No one can say for sure who that president will be or how they’ll make use of that authority.
Updated 2:20 pm ET, May 14, 2024, to clarify statements by Matt Olsen, assistant US attorney general for national security, to the Lawfare podcast.
