​The election may have shaken Washington, D.C., like a snow globe in the grip of a paint mixer, but the current Congress still has important business for the lame duck session. For anyone who cares about privacy in this age of surveillance, issue one has to be whether or not Congress will retain the promised fix to what so many call the “make everyone a spy” provision in the National Defense Authorization Act (NDAA).
 
This story goes back to April, when the House Permanent Select Committee on Intelligence slipped into the reauthorization of FISA Section 702 (which authorizes foreign intelligence) a measure to allow the government to secretly enlist almost every kind of U.S. business to spy on their customers. In response to the outcry, carveouts were made that exempted coffee shops, hotels, and a few other business categories. But most businesses – ranging from gyms to dentists’ offices, to commercial landlords with tenants that could include political campaigns or journalists – are required to turn over their customers’ communications that run on ordinary Wi-Fi systems.
 
It is widely believed that this legislation was aimed at cloud computing facilities, which were not previously covered by the relevant law. When the Senate took up reauthorization of Section 702, Intelligence Committee Chairman Mark Warner (D-VA) admitted to his colleagues that the new measure was overbroad, and that he would craft new legislation to fix it. Sen. Warner kept his word and crafted legislation to narrow the provision. Although the nature of this fix is classified, it is widely believed to limit this new surveillance power to cloud computing facilities.
 
The House Intelligence Committee, however, did not adopt that fix. We hear that behind-the-scenes negotiations are taking place, but we cannot report exactly who might be blocking it or why. Suffice it to say that it is far from clear that Congress will ultimately adopt Sen. Warner’s fix.
 
PPSA calls on Speaker Mike Johnson and Senate Minority Leader Mitch McConnell to make it clear that the NDAA will include a provision to narrow the scope of this extreme provision. We must not give the FBI and other government agencies warrantless access to practically all communications that run through any kind of equipment operated by almost any kind of business.
 
Allowing the current law to remain unfixed and unreformed would be a terrible punch in the gut to the American people and the new Congress. The 119th Congress has many surveillance debates scheduled, including one over the reauthorization of Section 702 itself in 2026 – which passed the House with the breaking of a tie vote. It would be a mistake to saddle the new Republican majority and the incoming Trump administration with a broken promise.

When Members of the House voted last week to reauthorize FISA Section 702, most did not realize that an amendment from the House Permanent Select Committee on Intelligence (HPSCI), sold as a “narrow” definitional change to the law, will actually deliver what Sen. Ron Wyden (D-OR) calls “one of the most dramatic and terrifying expansions of government surveillance authority in history.”
 
What the House missed the Senate can still fix. The Senate still has time to perform emergency surgery and excise this particularly toxic amendment.
 
Here’s the background: For years, “electronic communications service providers” such as Verizon or Google’s Gmail have been required to turn over the communications of targets. The House bill expands this requirement to enlist millions of small businesses that provide Wi-Fi or have access to routers or similar communications equipment. This provision would make American small businesses into providers of KGB-like surveillance.
 
If this seems hyperbolic, consider that this HPSCI amendment would force American small businesses of many sorts to collect the communications of their customers for the government. The bill does this by including any service provider who has access to equipment that transmits communications. The language was narrowed to exclude hotels, restaurants, dwellings, and community centers, but the measure still includes most businesses – owners and operators of any facilities that house equipment used to store or carry data, including data centers and commercial office buildings.
 
Millions of Americans, with little or no knowledge of the equipment they own or service –landlords, utility providers, repairmen, plumbers, cleaning contractors, and similar professionals – would have a legal obligation to secretly spy for the government. Lacking any ability to separate the communications of Americans from foreigners, they would be forced either to give the government direct access to the equipment or copy its messages en masse and turn it over. And then they would be under a gag order to keep their snooping a secret.
 
This version of Section 702 reauthorization would be a disaster for small businesses of all sorts. Bound to silence, small businesses would suffer consumer distrust as public knowledge of the contamination of the data supply chain spread. Consumers and business would have no recourse. This bill also marks a terrifying replacement of the constitutional order under the Fourth Amendment.
 
For these reasons, the Senate must do its duty and remove it.

​The Senate is on the verge of voting on the House-passed Reforming Intelligence and Securing America Act (RISAA), which includes a toxic provision people are calling the “Everyone’s a Spy” Amendment.
 
This amendment would compel millions of small businesses and corporations that have access to routers, Wi-Fi, or other ordinary communications equipment to turn over their customers’ data to the government.
 
Tell your Senators:
 
“Please remove the toxic ‘Everyone’s a Spy’ Amendment in the FISA surveillance bill that just passed the House.”

​Time and again, the forces of the surveillance status quo have prevented Congress from voting on reforms of FISA Section 702 – the authority passed by Congress to allow the government to track foreign threats but has been used in recent years to surveil millions of ordinary Americans.
 
The intelligence community especially doesn’t want Congress to demand closure of the loophole that allows the government to purchase your most sensitive and personal information from data brokers. Federal agencies can use this data to accumulate a portfolio of your health and medical issues, personal life, financial concerns, religious beliefs and worship, and political posts and activities.
 
Repeated attempts by the U.S. House of Representatives to debate and hold a floor vote on these reform amendments to Section 702 have been stalled by legislative maneuvers and gamesmanship. At the same time, the government has applied to the FISA Court to extend Section 702 without reforms for a whole year, which could elbow Congress out of the policy process entirely.
 
While Congress struggles, a poll conducted by YouGov, commissioned by FreedomWorks and DemandProgress, show the American people – Republicans, Democrats, and independents – are paying attention and they do not like what they see:
​

• Eighty percent of Americans agree that Congress should require government agencies to obtain a warrant before purchasing location information, internet records, and other sensitive data about people in the U.S. from data brokers.

 

• Seventy-six percent agree that government agencies should be required to obtain warrants before intentionally searching international communications for conversations involving people in the U.S.

In the reauthorization of Section 702, Americans demand that Congress:

• Close the loophole that allows international surveillance to become a platform to surveil Americans.

 

• Close the loophole that allows government to purchase our sensitive, personal information from data brokers.

Members of Congress are now asking themselves: If I allow these domestic surveillance programs to continue, how am I going to explain this my constituents? You can help clarify this issue for your Member of Congress.
 
Tell your U.S. House Representative:
 
“Stop the FBI and other government agencies from spying on innocent Americans. Please fight for a vote to reform FISA’s Section 702 with warrant requirements, both for Section 702 data and for our sensitive, personal information sold to the government by data brokers.”

​PPSA, in concert with a coalition of major civil liberties groups from the left, right, and center, is appealing to Members of Congress “to oppose any legislative end-run that allows the FBI and other intelligence agencies to continue to spy on Americans without giving Congress the opportunity to vote on reforms.”
 
The word from Capitol Hill is that the intelligence community is now lobbying to attach a reauthorization of FISA Section 702 to a “must-pass” spending measure. Such a maneuver would cement the intelligence community’s strategy of denying Members of Congress a chance to have a debate and to vote on reforms to this surveillance authority.
 
Our letter, which includes Americans for Prosperity, the Brennan Center for Justice, Demand Progress, FreedomWorks, and the Wikimedia Foundation, warns Congress:
 
“The Fourth Amendment will become a constitutional dead letter if the government can continue to track our every movement, communications, where we worship, our financial and health issues, what we believe, and our political activity without warrants.”
 
Our letter concludes: “Congress must be able to vote on reforms rather than being faced with a ‘take-it-or-leave-it’ choice between funding the government and protecting Americans’ liberties.”
 
Our FISA Reform Coalition letter ended by urging Congress to stand up for Americans’ privacy, the Constitution, and against the insulting premise that Members of Congress should not be allowed to vote on surveillance reform.

Tell your Representative in the U.S. House that you want the FBI and other federal intelligence agencies to stop spying on you and your family.
 
In recent years, the FBI and other agencies have freely dipped into Americans’ private communications and data caught up in foreign surveillance. The FBI, IRS, Drug Enforcement Administration, Pentagon, and other agencies also track your every move by purchasing your geolocation data and other sensitive, personal information scraped from the apps on your cellphone and sold to the government by shady data brokers.
 
Your personal information from these sources tells the FBI where you’ve been and where you’re going, where you worship, who you date or have fun with, and all about your health, financial information, personal beliefs, and political activities. Do you trust this government to have so much power over your life?
 
Consider that the FBI has already been caught dipping into Americans’ personal communications in recent years by the millions. The government has followed our political and religious activities for years without warrants, spied on 19,000 donors to a Congressional campaign, and spied on a state senator, a state judge, a U.S. Congressman, and U.S. Senator. If judges and Members of Congress can have their rights violated, imagine how much respect the FBI and other government agencies have for your privacy.
 
For now, champions of the intelligence community on Capitol Hill have used a legislative maneuver to prevent a vote that would require the government to get warrants before looking at your private information. The FBI and their friends know that if these amendments get a fair vote on the House floor, they will lose. So they’ve upended the whole process.
 
This is dirty pool. The lack of a vote denies your Member of Congress the right to debate and vote for reform. Unchallenged, this maneuver ensures that the FBI and other agencies will continue to ignore the Fourth Amendment to the U.S. Constitution, which clearly mandates that the government go to a court and obtain a warrant before your personal communications can be inspected.
 
So tell your U.S. House Representative to demand that the FBI and other federal agencies stop accessing your private, personal communications and data without a warrant.
 
Tell your U.S. House Representative:
 
“Stop the FBI from spying on innocent Americans. Please fight for a vote to reform FISA’s Section 702 with warrant requirements, both for Section 702 data and for our sensitive, personal information sold to the government by data brokers.”

The Project for Privacy and Surveillance Accountability (PPSA) will be scoring this week’s votes on each of the two competing bills to reauthorize Section 702 of the Foreign Intelligence Surveillance Act.

For our followers, PPSA will positively score Members who vote in favor of the Protect Liberty and End Warrantless Surveillance Act, which passed the House Judiciary Committee this week in an overwhelming bipartisan 35-2 vote.

We will negatively score Members who vote in favor of the FISA Reform and Reauthorization Act from the House Permanent Select Committee on Intelligence.

PPSA supports the Protect Liberty bill because it places critical guardrails and limits on warrantless FBI and other government surveillance of Americans, while reauthorizing Section 702 to protect national security.

PPSA opposes the HPSCI bill because it rubberstamps the FBI’s and other agencies’ warrantless surveillance of Americans for years to come, while actually expanding the ability of the government to spy on Americans.

The table below highlights the key differences between the two bills.

​Last week, we suggested that the last days of November could prove decisive for reform of Section 702 of the Foreign Intelligence Surveillance Act (FISA).
 
Now word has broken that Congressional leadership is contemplating bypassing Congressional debate by attaching Section 702 to the must-pass National Defense Authorization Act (NDAA), which keeps the military afloat, alight, and on its feet. We are hearing that some wish to attach a version authored by the House Permanent Select Committee on Intelligence (HPSCI), a bill that has at best weak, cosmetic reforms of this authority.
 
Such a move would arm-twist a bicameral, bipartisan majority that wants substantive reforms in Section 702. This majority exists because Section 702 is a program enacted by Congress to surveil foreigners on foreign soil but has been used by the FBI and other agencies as a domestic spying program. In a recent year, Section 702 has been used to warrantlessly capture the communications of 3.4 million Americans. If House and Senate leaders choose this path, it will force Members into an up-or-down vote on a critical bill, with limited debate and no opportunity to make last-minute amendments.
 
In a letter to Congressional Republicans, former House Judiciary Committee Chairman Bob Goodlatte and PPSA Senior Policy Advisor laid out what’s so wrong with HPSCI’s approach:

• Doesn’t Address Warrantless Surveillance: HPSCI’s proposal limits warrants to “evidence-of-a-crime-only” searches. This would do almost nothing to close the loophole that has allowed the government to warrantlessly surveil millions of Americans, including Members of Congress, 19,000 donors to a congressional campaign, and protestors on the right and left.

 

• Leaves Intact the Data Broker Loophole: The HPSCI bill does nothing to curb the warrantless access federal agencies have into Americans’ most personal, sensitive information scraped from our apps and sold to data brokers.

 

• Tweaks Internal FBI Policy But Leaves Intact Executive Orders that Operate Around Statutes and Oversight: “You could wallpaper the entire Capitol with all the FBI promises about how internal improvements would end surveillance abuse,” Goodlatte wrote. Meanwhile, the HPSCI approach does nothing to place guardrails around Executive Order 12333 and other self-proclaimed executive branch authorities.

 
“There is no reason to rush this process and give the Administration what it wants by sneaking HPSCI’s deeply flawed proposal into the NDAA,” Goodlatte wrote. “In fact, the current Section 702 FISA Court certification does not expire until April 10, 2024, which means Congress has several months to put together a package of real reforms that could justify extending Section 702.”
 
Attaching Section 702 to the NDAA would derail the work of the House Judiciary Committee, which shares jurisdiction over intelligence programs with HPSCI. The House Judiciary Committee is well down the path of drafting a bill. Extending the NDAA would be a sign of significant disrespect for this committee and all the Members, left and right, who have shown a strong interest in debating this program.
 
“Instead of jamming Members and daring them to oppose the NDAA, Leadership should proceed through regular order and let the House Judiciary Committee lead the way with its bipartisan surveillance reform efforts, drawing inspiration from the Government Surveillance Reform Act of 2023,” Goodlatte wrote. “This issue is far too important to turn it into a game of political chicken in the NDAA.”

​Late last week, word began to circulate that the Senate majority is considering including Section 702 of the Foreign Intelligence Surveillance Act in a Continuing Resolution (CR). On Monday morning, a broad coalition of civil liberties groups – left, right and center – sent a letter to Majority Leader Chuck Schumer urging him and the Senate not to include Section 702 in the CR or any must-pass legislation.
 
Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee, explained why PPSA joined in this effort in a media statement. Goodlatte said:
 
“We’ve seen how short-term extensions have a habit of becoming long-term. Extending Section 702 in the CR risks a clean reauthorization of Section 702 with no reforms.
 
“If that happens, expect the FBI to get back to business as usual. Expect warrantless FBI surveillance of Members of Congress and Americans exercising their First Amendment rights to continue. Including Section 702 in the CR would also cut reform off at the knees. It would short-circuit bipartisan reformers in the House and Senate, including critical legislative efforts by the House Judiciary Committee and by dozens of Senators and House Members who’ve worked in good faith to balance national security with our constitutional rights. 
 
“Upending these reform efforts would not only lead to a new wave of abuses under Section 702 or other parts of FISA – it would also enable federal agencies to increasingly surveil Americans by accessing our most sensitive personal data, scraped from apps, and sold to the government by shadowy data brokers. 
 
“For all these reasons, it would be a terrible mistake to include Section 702 in a CR or any other must-pass legislation.”

​The Project for Privacy and Surveillance Accountability joined with more than a dozen civil liberties organizations in an open letter warning Congress about the dangers of the Restrict Act, which would give the Secretary of Commerce sweeping powers over virtually all information technology.
 
“The scope of the act is enormous,” the coalition letter reads, “and may allow the administrative state to issue regulations affecting telecommunications, cryptocurrencies, press freedoms, and the use of and access to the Internet itself.”
 
The bill would create criminal penalties that carry up to 20 years in prison and up to $1 million in fines, as well as civil asset forfeitures.
 
If enacted, the Restrict Act would necessitate and likely authorize even more domestic spying on Americans than currently occurs, while cracking down on lawful speech. It is a recipe for an American surveillance state.