Big Tech Claims Proposed Spy Bill Converts Its Employees into Informants

Dell Cameron

A trade organization that represents some of the world’s biggest IT companies, such as Google, Amazon, IBM, and Microsoft, is voicing a strong opposition to the Biden administration’s ongoing efforts to significantly expand a key US government surveillance authority.

The US Senate is likely to vote on a legislation this Thursday that will extend a global wiretap program which is authorized under the Foreign Intelligence Surveillance Act (FISA). The bill, approved by the House of Representatives last week, contains a provision. This provision, known as the Reforming Intelligence and Securing America Act (RISAA), threatens to expand significantly the scope of the spy program. This would aid the government to compel the assistance of a whole new range of businesses.

Legal professionals suggest that this provision could make it possible for the government to enroll anyone with access to facilities or equipment that stores communication data. This may force delivery personnel, cleaning contractors, and utilities providers, among others, to assist US spies acquire access to Americans’ emails, phone calls, and text messages, as long as one communication side is foreign.

A global tech trade association, the Information Technology Industry Council (ITI), is now urging Congress not to pass RISAA without removing a key 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.

Lauren Goode

William Turton

Matt Simon

Eric Ravenscraft

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 reveal that members of the House Intelligence Committee acted as go-betweens for the IC in its effort to persuade Congress to support the provision. An email shared with House members in February by Michael Calcagni, the committee’s deputy staff director, notified lawmakers that the “collection gap” was both “serious and dangerous”, and despite unfounded claims, it would not permit or enable the Government to surveil any American who uses public WiFi at places like Starbucks or McDonalds.

One of the nation’s prominent FISA experts, Marc Zwillinger, a private attorney who has appeared before the FISA Court of Review twice, started warning about the provision in December. He pointed out text that would enable the government to oblige the assistance of “any service provider” with access to “equipment that is being or may be used to transmit or store” communications, as long as one of the recipients is a foreigner considered to be overseas.

While publicly dismissing Zwillinger’s analysis, House members from the intelligence community nonetheless made an attempt to silently “narrow” the provision in order to dampen any critique, excluding certain business types like senior centers, hotels and coffee shops. In a follow-up last week, Zwillinger and other lawyers who’ve made rare appearances before the FISA court termed the intel committee’s improvements as “marginal”, stating that the need for the exclusions only evidenced that the government is exceeding its powers.

However, Zwillinger states that the provision still traps those who own and operate places housing equipment used to store and transmit data, such as data centers and buildings owned by commercial landlords, who merely have access to communications equipment in their physical space. The text might be construed to also include “delivery personnel, cleaning contractors, and utility providers.” And while the new provision excludes businesses like coffee shops, such businesses usually rely on cloud computing services whose equipment continues being subject to the expanded scope of the 702 program.

“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.

“There is no greater responsibility of the US government than to provide for the security of the country,” he says, adding it was incumbent upon to craft legislation to address national security concerns “in a focused way.”

Updated 4/17/2024, 6:30 pm ET: Added additional details clarifying ITI’s position on RISAA.

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