An obscure provision in legislation to reauthorize the government’s chief spying tool has raised new alarms in the Senate as it scrambles to renew the authority by a Friday deadline.
The measure was added to the Foreign Intelligence Surveillance Act by House Intelligence Chairman Mike Turner, Ohio Republican, and his Democratic counterpart on the panel, Rep. Jim Himes of Connecticut. It would expand who the federal government can order “to transmit or store wire or electronic communications” to include cable TV installers and data centers.
Sens. Ron Wyden, Oregon Democrat, and Mike Lee, Utah Republican, are among a group of lawmakers fighting the FISA reauthorization bill and seeking to add more stringent guardrails.
They called the Turner-Himes provision an expansion of the surveillance state.
“Not only are Washington’s spy guys refusing to reform their unconstitutional surveillance regime on American citizens — they’re working to expand it. We must defeat them,” Mr. Lee said of the provision.
Mr. Wyden said the provision “would force your cable guy to be a government spy and assist in monitoring Americans’ communications without a warrant.”
Attorney Marc Zwillinger, a Washington-based data privacy lawyer, said the provision expands the definition of an “electronic communications service provider” that the government can compel to transmit or store communications.
The expansion would add data centers and commercial landlords, which are businesses, he said, that “merely have access to communications equipment in their physical space.”
It could scoop up anyone “with access to such facilities and equipment, including delivery personnel, cleaning contractors, and utility providers,” Mr. Zwillinger said.
Mr. Lee and Mr. Wyden are among 13 Senate lawmakers who want to overhaul FISA through legislation that they say would protect Americans from foreign threats while also blocking warrantless government surveillance.
Lawmakers are up against the clock to pass something by Friday when FISA’s Section 702 expires.
Section 702 allows the government to collect electronic data — texts, phone calls, emails — from foreigners living abroad, but Americans’ communications can also be ensnared if they are communicating with foreign targets.
Mr. Lee and Mr. Widen are up against Senate Democratic and GOP leadership who are urging their members to simply vote for a two-year reauthorization of the spy power that intelligence officials say is vital to thwarting terrorist attacks and other threats.
The House passed the bill last week.
Senate Minority Leader Mitch McConnell, Kentucky Republican, said his GOP colleagues who demand a warrant requirement are “misguided [and] frankly, they would forget the lessons of 9/11.”
“Let me be clear: the data collected under Section 702 is collected lawfully,” Mr. McConnell said in a Senate floor speech. “It is entirely reasonable under the constitution. Any incidental collection of communications by or about U.S. persons is also reasonable.”
• Kerry Picket can be reached at kpicket@washingtontimes.com.
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