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Members of the United States Senate have been working for more than a month to shore up safeguards against further misuse of the US government’s most consequential surveillance program. Those efforts have hit a snag, however, with at least two Republican senators now privately objecting to the changes—provisions that seek to impose new limits on the US government’s power to wiretap communications between Americans and foreigners overseas.
In a bipartisan move, Senate Intelligence Committee members approved two provisions last month aimed at addressing what legal experts describe as troubling inadequacies in the Foreign Intelligence Surveillance Act (FISA), the key authority by which the US intelligence community can direct certain companies to secretly intercept calls, texts, and emails on the government’s behalf. The provisions were introduced last week as part of a must-pass piece of legislation authorizing various intelligence activities for the coming fiscal year.
One of the provisions seeks to clarify what types of businesses can be subjected to the wiretap orders—companies the government commonly refers to as “electronic communication service providers,” or ECSPs. The intelligence community has sought for years to expand the definition of the term in order to enlist the aid of new companies, and succeeded in doing so after a heated congressional fight this spring over the FISA wiretap program known as Section 702.
Privacy experts argue that the government drastically overshot its mark, creating ambiguity in FISA that threatens to ensnare limitless categories of new companies and individuals—anyone, virtually, deemed a “custodian” of equipment capable of storing and carrying the data it seeks.
Legal experts such as Marc Zwillinger, one of the few private attorneys to ever appear before the nation’s secret surveillance court, noted in April that the changes were likely to vastly increase the number of Americans whose communications are being wiretapped—communications that the government claims not to “target” but to merely intercept “incidentally.”
WIRED has learned from multiple sources that a Republican senator filed an objection to the provision addressing this issue, a “fix” that would limit the range of businesses subject to wiretap orders to those referenced in a 2022 FISA court opinion. As secret law, the exact nature of these businesses remains classified; however, it is widely believed that the government was seeking the power to compel the cooperation of US-based data centers in addition to service providers like AT&T and Google, which are among the more traditional targets of FISA directives.
WIRED could not immediately confirm the identity of the Republican senator objecting to the proposal, but understands they serve on a committee of jurisdiction. The judiciary holds jurisdiction over FISA, while the intelligence committee owns the amendment carrying the provision, the Intelligence Authorization Act (IAA). The IAA is passed annually, normally as a standalone bill, but is slated to be attached this year as an amendment to another piece of must-pass legislation, the National Defense Authorization Act, which Congress is aiming to vote on by fall.
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The Senate’s practices for the approving of amendments prior to a floor vote are somewhat obscure and often informal, differing depending on the committee. In this case, a single objection by a member of the intelligence committee is likely enough to see it struck. Objections filed with committee leaders are typically kept private.
A Senate source with knowledge of the ongoing negotiations, granted anonymity because they are not authorized to speak on the record, tells WIRED that Senate practices for passing controversial amendments have grown increasingly nebulous in recent years, blaming the desire of many lawmakers to avoid scrutiny for their positions on contentious issues. Senate leaders may, for example, use substitute amendments to strike down or add language to a bill in place of a process that previously required a public vote.
In an effort to salvage the Section 702 program, Senate Intelligence Committee chair Mark Warner urged lawmakers in May to temporarily set aside concerns about the ECSP language, one impetus behind this year’s drawn-out congressional fight that delayed renewal of the 702 program for half a year, threatening to sunset the authority after a temporary extension last winter. In remarks to the press and to colleagues on the Senate floor, Warner, a Democrat of Virginia, promised to address the concerns this summer, vowing to reporters that he was “absolutely committed” to refining the text that experts like Zwillinger warned would expand the intelligence community’s authority beyond reason.
Successfully attaching the new language to the IAA in June, Warner appeared to follow through with his promise.
“As Senator Warner expressed during the 702 debate, and as evidenced by his efforts to include these provisions in the committee-passed IAA, he supports these measures and remains committed to working through any challenges that may arise ahead of the full vote in the Senate,” said Warner’s press secretary, Valeria Rivadeneira.
Zwillinger tells WIRED that any backtracking by the Senate over the ECSP concerns is likely to impact the public’s trust in the intelligence community’s word during future FISA debates. “The overbroad ECSP definition added during the reauthorization of Section 702 should be narrowed,” he says, noting that “even its sponsors had agreed to narrow it to the specific circumstances that generated the amendment.”
Friends of the Secret Court
A second provision approved by Senate intel members in June—and now similarly under threat—aims to ensure the FISA court more reliably calls upon attorneys like Zwillinger to provide advice about the impact of FISA surveillance on Americans’ civil liberties. These experts, known as amici curiae (literally “friends of the court”), are a common feature in US courts, used by judges to gain insight into key issues surrounding difficult cases, often when civil rights are involved. Unlike typical amici, experts called to submit briefs before the FISA court are few and far between, with the law demanding that they be eligible for access to classified information.
The law currently directs the FISA court to appoint an amicus when presented with a “novel or significant” concern, unless it finds that doing so is “not appropriate.” The new provision, however, would create a presumption that the court more reliably appoints amici when a government request for surveillance presents “exceptional” constitutional concerns, or when the government intends to directly target an American.
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Last week, WIRED confirmed that Senator John Cornyn, whose committee assignments include both judiciary and intelligence, was the source of an objection to the new amicus language, threatening to scuttle the changes. Another Senate source with knowledge of the objection says that Cornyn is specifically concerned about delays that he believes will result from the court’s increased reliance on the amici, viewing the process as potentially tying up cases in discovery battles as experts vie with the government for access to classified files.
The source adds that Cornyn claims the new rules threaten to grant foreign nationals greater rights than those of criminal defendants, something that foreign adversaries could exploit. It is unclear, however, by what method Cornyn believes a foreign adversary might gain insight into the court’s proceedings. Information presented in the hearings are among the nation’s most closely guarded secrets.
Noah Chauvin, a former intelligence counsel for the US Department of Homeland Security, dismissed Cornyn’s concerns as overblown and, in some cases, invalid. “In almost every instance, the presumption that amici will be appointed applies to a circumstance where the surveillance targets a US person,” he says. The only exception is when the surveillance presents a “novel or significant interpretation of the law.”
Even when amici avail themselves of new appellate rights laid out in the provision, however—after objecting, for instance, to a new method of surveillance certified by the court—the process would not inhibit the government from continuing to intercept communications under FISA. Instead, the surveillance would continue under the last certification issued by the court, even if it has already expired.
Amici's right to access information is relatively narrow, says Chauvin, now an assistant professor at the Widener University Commonwealth Law School in Pennsylvania. He notes that the government has the ability to prevent delays at any time by simply providing experts with the information they need in advance, rather than forcing the court to debate what it’s required to disclose. While relying on constitutional experts more frequently may slow down the process in certain instances, he says, that is also largely the point. “To the extent [amici] create friction, making it more difficult for the government to access Americans’ private information without demonstrating to a court that such access is necessary—that’s a feature, not a bug.”
Notably, FISA proceedings are, for obvious reasons, conducted ex parte, meaning the target of a surveillance order has no presence or representation in court. This arguably heightens the need for the court to rely on advice from subject matter experts when it’s confronted with unprecedented uses of communications technologies, which are constantly evolving.
WIRED reached out to the White House, National Security Council, and Office of the Director of National Intelligence for comment on the possible fate of provisions, but has not received a response.
With regards to other concerns raised by Cornyn, such as the fact that the amici are not required to have specific intelligence-collection experience, Senate sources defending the new text noted that’s nothing new. While some experts called up by the FISA court have that experience, others are tapped for their knowledge of privacy and civil liberties or their expertise in communications technology. Ultimately, it’s the court’s prerogative to determine what “legal or technical expertise” is necessary depending on the matter at hand, so long as that person is “eligible for access to classified information.”
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Experts and multiple Senate sources noted that the amicus provision approved by the Senate Intelligence Committee last month was effectively a watered-down version of an amendment introduced by senators Mike Lee and Patrick Leahy four years ago. For instance, that amendment would have directed the FISA court to appoint an amicus in cases where the government sought to surveil a congressional staffer—no longer the case. Such “sensitive investigative matters” now extend purely to elected officials and political candidates, in addition to members of political, news, and religious organizations.
Notably, the much stronger Lee–Leahy amendment passed the Senate in 2020 by a wide margin: 77–19. “That's how uncontroversial this provision is,” says Liza Goitein, a FISA expert and senior director at the Brennan Center of Justice at New York University School of Law. “This is a commonsense, good-government measure that is overwhelmingly supported by lawmakers on both sides of the aisle.”
Goitein says the concerns about delays resulting from the amici challenging FISA decisions are also exaggerated. “There's no appeal right,” she says. “They can petition the FISA court to certify the case for review. The FISA court can say no, so the FISA court can police this and determine whether it's going to cause undue delay or not.”
Senate sources say discussions over the provisions will continue throughout the week as staffers attempt to hammer out a resolution. The timeline for a vote on the full package of amendments to the NDAA remains unclear, though Senate staffers cited rumors that leadership would attempt to force a vote by the end of July. That said, lawmakers just received the notoriously voluminous text last week, raising serious doubts about the chamber’s ability to move the bill before its August recess. That it’s a mystery as to which party will control the Senate following the November election only serves to add friction to the process.
Sean Vitka, policy director at the nonprofit Demand Progress, notes that the 702 surveillance program was reapproved by Congress only after Warner vowed to address both the ECSP and amicus concerns this year. “Concerns that these modest-but-critical fixes are somehow too privacy-protective, when in fact they explicitly give spy agencies exactly what they asked for, are so ill-informed they blow past bad faith and border on incoherence,” he says.
If the objections hold, Vitka says, the next US president will retain “one of the most dangerous spying powers to ever exist.” The consequences of failing to implement these provisions, he warns, “could be catastrophic.”
