Wednesday, April 24, 2024

Extending Section 702 of FISA


Section 701(b)(4) is amended[…] by inserting after subparagraph (D) the following new subparagraph[…] any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications[…]

Elizabeth Goitein:

Buried in the Section 702 reauthorization bill (RISAA) passed by the House on Friday is the biggest expansion of domestic surveillance since the Patriot Act.


If the bill becomes law, any company or individual that provides ANY service whatsoever may be forced to assist in NSA surveillance, as long as they have access to equipment on which communications are transmitted or stored—such as routers, servers, cell towers, etc.

That sweeps in an enormous range of U.S. businesses that provide wifi to their customers and therefore have access to equipment on which communications transit. Barber shops, laundromats, fitness centers, hardware stores, dentist’s offices… the list goes on and on.


None of these people or businesses would be allowed to tell anyone about the assistance they were compelled to provide.


The NSA, having wholesale access to domestic communications on an unprecedented scale, would then be on the “honor system” to pull out and retain only the communications of approved foreign targets.

Edward Snowden (via Hacker News):

The NSA is just days from taking over the internet, and it’s not on the front page of any newspaper--because no one has noticed.


President Biden on Saturday signed legislation reauthorizing a key U.S. surveillance law after divisions over whether the FBI should be restricted from using the program to search for Americans’ data nearly forced the statute to lapse.

Barely missing its midnight deadline, the Senate had approved the bill by a 60-34 vote hours earlier with bipartisan support, extending for two years the program known as Section 702 of the Foreign Intelligence Surveillance Act.


One of the major changes detractors had proposed centered around restricting the FBI’s access to information about Americans through the program. Though the surveillance tool only targets non-Americans in other countries, it also collects communications of Americans when they are in contact with those targeted foreigners. Sen. Dick Durbin, the No. 2 Democrat in the chamber, had been pushing a proposal that would require U.S. officials to get a warrant before accessing American communications.

Elizabeth Goitein:

It’s a gift to any president who may wish to spy on political enemies, journalists, ideological opponents, etc.

Update (2024-04-26): Richie Koch:

This article examines some of the most important privacy legislation and law enforcement policies in the US and how they impact privacy online.

Update (2024-05-10): Matt Novak (via Hacker News):

But an internal FBI email, leaked to Wired on Wednesday, may accidentally reveal how the federal law enforcement agency plans to overstep the spirit of the law, while technically maintaining the letter of the law.


Wired spoke with Rep. Zoe Lofgren, a Democrat from California who notes this newly leaked email “directly contradicts earlier assertions” by the FBI when the agency was trying to get the law reauthorized.

Update (2024-05-15): Tim Cushing:

Rather than acknowledge the near-miss, the deputy director went the other way, insisting the best way to demonstrate the real-world value of warrantless access is to engage in even more warrantless access. Abbate’s email is couched in language that suggests analysts should do all they can to ensure they don’t violate internal policies or FISA-ordered restrictions. But it still encourages FBI agents to “look for” reasons to obtain US persons’ communications, which suggests at least some caution should be thrown to the wind if necessary.


But there’s another reason the FBI shouldn’t be encouraging more use of a program that has been abused incessantly since its inception: more use means more opportunities for abuse. That’s just the way things are. There’s no getting around it. While it may result in a smaller overall percentage of abusive searches, it will result in more total abusive searches. You would hope an agency that nearly got hit with a warrant requirement would show a bit more caution as it moved forward, rather than send out a “do as many searches as you can” email to FBI analysts with access to 702 collections.


So, there’s no telling how many searches are actually being performed. The FBI has only been reporting these numbers for three years and it has already changed its “counting methodology” once. That could mean internal and external restrictions have actually resulted in less access to US person’s communication. Or it could mean analysts are accessing these communications just as often as they did in 2001, but have found a way to report these numbers to make it look as though the agency has reined in this access a bit. Then again, it might mean the FBI is doing more but reporting less by bundling searches to lower the total number of searches while giving it access to a greater number of communications. And there’s no way we’ll ever know what the FBI is actually doing without an outside audit of its Section 702 activities, something the agency is likely to oppose, obstruct, and otherwise delay from being made public.

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