The United States’ ability to intercept and store Americans’ text messages, calls and emails in order to reach foreign intelligence agencies was not only expanded but improved over the weekend in ways that are likely to puzzle the public for many years to come will stay.
On Saturday, U.S. President Joe Biden signed a controversial bill that extends the life of a U.S. warrantless surveillance program by two years, ending a months-long battle in Congress over an authority that U.S. intelligence agencies admit has been used frequently in the past was abused.
At the urging of authorities and with help from powerful bipartisan allies on Capitol Hill, the program was also expanded to a wide range of new companies, including U.S. data centers, according to a recent analysis by legal experts and civil rights organizations.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the U.S. National Security Agency (NSA) and the Federal Bureau of Investigation (FBI), among other agencies, to monitor calls, text messages, and emails transmitted over U.S. networks. over a longer period of time because one side of the communication is foreign.
Americans caught up in the program face limited privacy rights.
While the government requires a foreign target to begin wiretapping, Americans are often involved in the intercepted conversations. And although US Attorney General Merrick Garland insisted in a statement on Saturday that the updates to the 702 program “ensure the protection of Americans’ privacy and civil liberties” and that the government never intentionally targets Americans, the Government still reserves the right to store data on their communications and access them later without good reason.
“Section 702 is intended to be used only to spy on foreign nationals abroad,” said Senate Judiciary Committee Chairman Dick Durbin. “Instead, it unfortunately enabled unauthorized access to vast databases of Americans’ private phone calls, text messages and emails.”
Under the law, the government can retain communications captured by the 702 program for half a decade or longer – indefinitely, as long as the government makes no effort to decrypt them.
A trade group representing some of the world’s largest technology companies spoke out against plans to expand Section 702 in the final hours of debate, claiming that a new provision written by members of the House Intelligence Committee would undermine U.S. competitiveness -technologies and “would probably endanger the …”. continued global free flow of data between the US and its allies.”
The U.S. Secret Service maintains its enormous surveillance power through annual certifications issued by a secret court. In particular, the certifications allow the NSA to force companies in the US – classified as Electronic Communications Service Providers (ECSPs) – to cooperate with the program by collecting data and installing listening devices on behalf of the agency.
Years ago, the government attempted to unilaterally expand the legal definition of ECSP, forcing the cooperation of entirely new categories of companies. Those efforts were rejected by the FISA court in 2022 with a ruling that said only Congress had the “competence and constitutional authority” to rewrite the law.