House Intel Bill Advances Without FISA Fix, Leaving Privacy in the Shadows

​The recent approval of the House Intelligence Committee’s annual intelligence policy bill sets up a critical moment for the ongoing debate over surveillance powers, particularly the controversial FISA Section 702. While the bill does not include a provision to narrow the definition of "electronic communication service providers" (ECSP), this issue will soon come to a head in the House-Senate conference.
 
Rep. Jim Himes (D-CT) signaled his acceptance of Senate Intelligence Chair Mark Warner’s "technical fix," which would narrow the scope of the ECSP definition. Himes said the change “would be totally fine with me,” and that “I always believed that the language was overbroad in the initial amendment…”
 
This change would prevent ordinary businesses—like coffee shops or small offices—from being forced to assist in government surveillance. While Himes expressed he would be "totally fine" with Warner’s proposal, the issue has yet to be fully debated or incorporated into House legislation. We’ve seen efforts at reform falter before, and the final outcome will be determined behind closed doors in the House-Senate conference, where transparency is sorely lacking.
 
As we’ve previously noted, broadening the ECSP definition without clear limitations would create a “Make Everyone a Spy” law, enlisting small businesses into the surveillance apparatus.
 
Moreover, the administration’s reassurance that the law will only be applied to specific providers, based on a classified FISA court decision, is insufficient. History shows that such promises often erode over time, allowing the intelligence community to expand its surveillance reach through legal loopholes. John Wiegmann, the new top lawyer for the Office of the Director of National Intelligence, also supported Warner’s. But as with everything, we want to see the changes in writing in the bill.
 
The closed-room conference between the House and Senate is where these decisions will play out, but the lack of public scrutiny makes it a fraught process. Given past betrayals on surveillance reform, we have ample reason for anxiety. Privacy advocates must remain vigilant and press for real reforms that ensure no further expansion of surveillance powers. The House and Senate need to guarantee that any changes made truly limit the scope of ECSPs and protect Americans from warrantless data collection. PPSA will be monitoring this situation closely as it unfolds.