No Fix for the “Make Everyone a Spy” Provision Means the Surveillance State Can Target Churches, Journalists, Political Campaigns, and You

A solemn promise was made on the floor of the U.S. Senate – and by the Congress to the American people – that has been broken. As a result, most businesses and organizations in the United States that offer free Wi-Fi service now have a legal obligation to spy on their tenants and customers for the National Security Agency and keep that spying secret from them forever.
 
In April the U.S. Senate reauthorized FISA Section 702, an authority that allows federal agencies to spy on foreign targets on foreign soil. Facing an eleventh-hour vote, the Senate took Senate Intelligence Committee Chairman Mark Warner (D-VA) at his word that a flaw in the bill would soon be corrected. Accepting that promise, the Senate reauthorized Section 702.
 
That flaw concerns a provision added to the reauthorization that allows the NSA to force businesses that offer internet communications – from the landlords of office complexes that house journalists and political campaigns, to fitness centers, to houses of worship – to make the communications of their customers secretly available. Janitors and cleaning services with access to equipment and thumb-drives in their pockets can now be legally enlisted to spy for the NSA. All this can be done without bothering with niceties like the U.S. Constitution’s Fourth Amendment and its warrant requirement.
 
Sen. Warner acknowledged that this language defining an “electronic communications service provider” was overbroad and promised a fix to narrow it. Though the target category is classified, that fix is widely believed to be narrowing the provision to providers of cloud communications.
 
To be fair to Sen. Warner, it was a few House Republicans who rejected adding the fix to the Intelligence Authorization Act. And it was some Republicans who fought to reject any narrowing of this vast expansion of the American surveillance state, dubbed by many to be the “Make Everyone a Spy” provision. We still remain dismayed and disappointed that the Chairman of the Senate Intelligence Committee could make such a promise and not see to it that it is kept.
 
But Congress can still redeem itself. Surely Members will not want to disappoint constituents as word spreads about the extent and magnitude of this new, limitless domestic surveillance program. Surely they will also want to live up to a solemn promise made to colleagues. This fix can be enacted next year.
 
In the meantime, PPSA will be working with our surveillance reform allies, left and right, to narrow the “Make Everyone a Spy” provision.
 
If Congress chooses not to keep its word, however, the American people will surely grow alarmed and upset over this expansive surveillance. Keep in mind that the House came within one tie-breaking vote of adding a warrant requirement in the reauthorization of Section 702 this year. The Make Everyone a Spy law will now be Exhibit A in making our case for warrants and against the surveillance state.
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