A trade organization representing some of the world’s largest information technology companies—Google, Amazon, IBM, and Microsoft among them—say its members are voicing strong opposition to ongoing efforts by the Biden administration to dramatically expand a key US government surveillance authority.
The US Senate is poised to vote Thursday on legislation that would extend a global wiretap program authorized under the Foreign Intelligence Surveillance Act (FISA). Passed by the House of Representatives last week, a provision contained in the bill—known as the Reforming Intelligence and Securing America Act (RISAA)—threatens to significantly expand the scope of the spy program, helping the government to compel the assistance of whole new categories of businesses.
Legal experts argue the provision could enable the government to conscript virtually anyone with access to facilities or equipment housing communications data, forcing “delivery personnel, cleaning contractors, and utilities providers,” among others, to assist US spies in acquiring access to Americans’ emails, phone calls, and text messages—so long as one side of the communication is foreign.
A global tech trade association, the Information Technology Industry Council (ITI), is now urging Congress to avoid passing RISAA due to a particular provision “dramatically expanding the scope of entities and individuals covered” by the program, known as Section 702. Changes to the 702 program included in the House bill, ITI says, would only serve to send customers in the US and abroad fleeing to foreign competitors, convincing many that technology in the US is far too exposed to government surveillance.
The group’s membership includes several major equipment manufacturers, such as Ericsson, Nokia, and Broadcom, as well as large cloud storage providers like Google, Microsoft, IBM, and Salesforce. “ITI’s position is that the provision should be removed,” the group’s communications director, Janae Washington, tells WIRED. “Our positions are based on member consensus.”
The individual ITI member companies WIRED contacted for their comment on the legislation did not immediately respond or declined to comment.
The provision under fire stems from a ruling handed down by the US government’s secret surveillance court—the FISA court—that oversees the 702 program. The program is designed to target the communications of foreigners, including calls and emails to and from US citizens. To this aim, the federal statute specifies that the government may compel the assistance of businesses that fall into the category of what it calls “electronic communications service providers,” or ECSPs.
Companies like Google and AT&T have typically fallen into this category as direct providers of the services being wiretapped; however, the US government has also moved in recent years to interpret the term more broadly as part of an effort to expand the roster of entities whose assistance it’s allowed to compel.
The FISA court, in a decision backed by its own review body, pushed back against the expanded definition, telling the government that what constitutes an ECSP remains “open to reconsideration by the branches of government whose competence and constitutional authority extend to statutory revision.”
More concisely: The court reminded the government that only Congress has the power to rewrite the law.
The US Intelligence Community (IC) thus began a campaign to ensure that this year’s legislation reauthorizing the 702 program redefines “ECSP” to address what it calls a “collection gap resulting from recent court opinions.”
Internal emails obtained by WIRED show that members of the House Intelligence Committee served as intermediaries for the IC in its campaign to convince Congress to support the provision. An email circulated to House members in February by Michael Calcagni, the intel committee’s deputy staff director, for instance, informed lawmakers that the “collection gap” was both “serious and dangerous” and that “contrary to unsubstantiated assertions, it would not authorize or enable the Government to conduct surveillance of any American who connects to public WiFi at a Starbucks or McDonalds.”
One of the nation’s leading FISA experts, Marc Zwillinger, a private attorney who has twice appeared before the FISA Court of Review, began raising the alarm in December over the provision, pointing to text that would allow the government to compel the assistance of “any service provider” with access to “equipment that is being or may be used to transmit or store” communications, so long as one of the recipients is a foreigner reasonably believed to be overseas.
While rejecting Zwillinger’s analysis publicly, House intel members nevertheless attempted to quietly “narrow” the provision to clamp down on any criticism, excluding a handful of business types such as senior centers, hotels, and coffee shops. In a follow-up last week, Zwillinger and other attorneys who’ve made rare appearances before the FISA court characterized the intel committee’s improvements as “marginal,” saying the need for the exclusions only served to demonstrate the government is overreaching.
The provision, Zwillinger says, continues to ensnare owners and operators of facilities housing equipment used to store and carry data, “such as data centers and buildings owned by commercial landlords, who merely have access to communications equipment in their physical space.” The text could be interpreted to extend to “delivery personnel, cleaning contractors, and utility providers.” And while the new provision excludes businesses like coffee shops, those businesses typically rely on cloud computer services whose equipment remains subject to the 702 program’s expanded scope.
“Although the effects of this provision may be unintentional, its impacts would be very real,” ITI’s senior vice president of policy, John Miller, says. “The language in the provision vastly expands the US government’s warrantless surveillance capabilities, damaging the competitiveness of US technology companies large and small, and arguably imperiling the continued global free flow of data between the US and its allies.”
Should it become apparent to the world that America’s top IT companies—data centers, cloud providers, and security services alike—have been turned into a watering hole for the US Intelligence Community, many customers will “likely look to foreign competitors,” Miller says, companies whose technologies are viewed as less exposed to clandestine government requests.
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Dell Cameron
