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Ron Wyden Fears FISA 702 Could ‘Deputize’ Americans to Spy

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Photo-Illustration: Intelligencer; Photo: Getty Images

Amid the chaos of a busy news week, it would be easy miss the consequential fight in Congress over a surveillance bill that critics say could could intrude on Americans’ civil liberties. It concerns Section 702 of the Foreign Intelligence Surveillance Act (FISA), a sweeping, soon-to-expire law that already allows the government to access data from internet and phone providers involving foreign citizens.

Earlier this week, the House passed a version of the bill that would allow the government to acquire information from a much larger number of service providers, including tens of thousands of businesses that provide Wi-Fi to their customers. That prospect worries Senator Ron Wyden deeply. Wyden, the longest-serving member of the Senate Intelligence Committee, thinks the new language could mean many American businesses would be forced into the surveillance dragnet, which can intercept Americans’ messages without a court order. On Friday, he introduced a bipartisan bill that would remove FISA’s proposed new powers. He outlined his objections in a speech on the Senate floor. As Senate leaders from both parties tried to persuade critics to vote for re-authorization of the bill, I spoke with Wyden on Friday to understand the fight over Section 702.

Could you explain the expansion to FISA Section 702 that the Senate will be voting on?
What the bill does is it vastly expands the number of businesses and the number of individuals who can essentially be forced by the government to spy for them. In the past, the people who were collecting communications under 702 were basically internet service providers and phone companies, Google and AT&T. That’s the way it works right now. This guy in the House, Congressman Turner, without any discussion in the Senate whatsoever, dramatically expanded it. It expanded it to all these other service providers who have access to communication equipment. That’s it in a nutshell.

Turner’s provision, called Section 25, allows the government to forcibly deputize as a spy anybody who installs, maintains, and repairs communications equipment. Anyone who has access to a server, to a cable box, Wi-Fi, a phone, or a laptop. And if they have access to that, they can be forced into spying for the government. No warrants, no direct court oversight of this, and basically that person doesn’t have any recourse and probably doesn’t have high-priced lawyers available who are experts in figuring out the FISA court.

My understanding is that commercial-office landlords — so, all offices in Manhattan — are some of the largest groups that could get roped in?
If they are involved and have access to all these things that relate to communication, they can be deputized to play Big Brother for the government.

How robust is Section 702 already and what is that argument for expanding that dragnet?
I’m sure that Turner would say that it’s a dangerous world and that we need to have additional resources. They’ve said that we are not spying on anyone, and this is a technical kind of change. Well, if it’s technical, why are there so many exceptions to it? Just because they create all these exceptions makes me say “Why is this so broad?” Doing it at the last minute without anybody in the Senate knowing anything about it is a particularly big tell. Congressman Turner then goes on to say there are secret reasons for his amendment. I’ve been on the committee longer than anybody there and there’s no justification for saying that.

And how are you looking to change the bill?
What I’d do is strike it. A clean strike, removal, out, gone.

So does your bill look like the FISA Section 702 status quo?
Well, no. There are other changes and there are other things I’m concerned about, but this is the most serious. I created a bipartisan bill that primarily dealt with warrants and Chairman Durbin of the Senate Judiciary Committee largely adopted our bipartisan, bicameral amendment. I’m very supportive of it because this would do a lot to close a lot of the backdoor loopholes that you’ve got in 702.

Do some of those changes to reduce loopholes relate to what critics call the “warrantless surveillance” of 702?
Yes, but let me tell you why this is a problem. Communications systems are so integrated with each other, so clearly connected, what you have is that when the government collects on foreign-intelligence threats — and there are threats, no question about it, I can’t get into them, but there are threats. You’re increasingly seeing more and more law-abiding persons swept up in those searches. What I have been advocating for some time and Chairman Durbin has put in his bill is that we create a wide berth for government. So that if government feels there are “exigent circumstances” — imminent threats — government can go get the information immediately. No ifs, ands, or buts, government makes that judgement and in effect comes back and settles with the FISA court later.

There’s an irony that FISA was first enacted to restrict government surveillance of citizens. Do you feel like we’ve wavered from that in this new version?
I think the policies have not kept up with the times. That’s why I mentioned these communications being globally interconnected. That means that more law-abiding Americans are getting swept up.

This interview has been edited for length and clarity.

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