Elizabeth Goitein Profile picture
Dec 11 11 tweets 3 min read Twitter logo Read on Twitter
RED ALERT: Buried in the House intelligence committee’s Section 702 “reform” bill, which is schedule for a floor vote as soon as tomorrow, is the biggest expansion of surveillance inside the United States since the Patriot Act. 1/11
Through a seemingly innocuous change to the definition of “electronic service communications provider,” the bill vastly expands the universe of U.S. businesses that can be conscripted to aid the government in conducting surveillance. 2/11
Under current law, the government can compel companies that have direct access to communications, such as phone, email, and text messaging service providers, to assist in Section 702 surveillance by turning over the communications of Section 702 targets. 3/11
Under Section 504 of the House intelligence committee’s bill, any entity that has access to *equipment* on which communications may be transmitted or stored, such as an ordinary router, is fair game. What does that mean in practice? It’s simple… 4/11
Hotels, libraries, coffee shops, and other places that offer wifi to their customers could be forced to serve as surrogate spies. They could be required to configure their systems to ensure that they can provide the government access to entire streams of communications. 5/11
Even a repair person who comes to fix the wifi in your home would meet the revised definition: that person is an “employee” of a “service provider” who has “access” to “equipment” (your router) on which communications are transmitted. 6/11
The bill’s sponsors deny that Section 504 is intended to sweep so broadly. What *is* the provision intended to do, and how is the government planning to use it? Sorry, that’s classified. 7/11
At the end of the day, though, the government’s claimed intent matters little. What matters is what the provision, on its face, actually allows—because as we all know by now, the government will interpret and apply the law as broadly as it can get away with. 8/11
This isn’t a minor or theoretical concern. One of the FISA Court amici posted a blog to warn Americans about this provision. I can’t overstate how unusual it is for FISA Court amici to take to the airwaves in this manner. We’d be foolish to ignore it. 9/11 zwillgen.com/law-enforcemen…
If you don't want to have to worry that the NSA is tapping into communications at the hotel where you're staying, tell your House representative to vote NO on the House intelligence bill this week. More on the many flaws with that bill here: 10/11 brennancenter.org/our-work/resea…
Instead, they should vote for the Protect Liberty & End Warrantless Surveillance Act, a bill passed by the House Judiciary Committee on a 35-2 vote that would reauthorize Sec. 702 with strong reforms to protect Americans’ privacy and civil liberties. 11/11 judiciary.house.gov/media/press-re…

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More from @LizaGoitein

Nov 28
Senate intelligence committee (SSCI) leaders have introduced a bill to reauthorize FISA Section 702 *until 2035.* Although it claims to include “reforms,” the bill would actually do more to expand Section 702 surveillance than rein it in. 1/22 therecord.media/senate-section…
Background (skip the next 3 tweets if you’re up to speed!): Section 702 authorizes warrantless surveillance, so it can only be targeted at foreigners abroad. But the surveillance inevitably sweeps in vast quantities of Americans’ communications. 2/22
Despite Congress’s mandate to “minimize” retention and use of Americans’ information, intelligence agencies routinely search through Section 702 data looking for Americans’ phone calls, text messages, and emails. 3/22 justsecurity.org/85068/the-year…
Read 22 tweets
Sep 28
The Privacy and Civil Liberties Oversight Board’s long-awaited Section 702 report is out. Top line: the report recommends case-by-case judicial approval before accessing Americans’ communications collected under Section 702. 1/20 documents.pclob.gov/prod/Documents…
The administration has argued that individualized judicial review of U.S. person queries is unworkable and unnecessary. I’m sure officials deluged PCLOB members with classified briefings and documents to try to make their case. 2/20
It didn’t work. A majority of PCLOB members concluded that individualized judicial approval is not only doable, it MUST be done in order to protect Americans’ rights and prevent the “widespread violations” the FISA Court has identified. 3/20
Read 20 tweets
Jul 21
Today, the government released a redacted version of the FISA Court’s April 2023 opinion approving Section 702 surveillance. The opinion provides yet more reasons why Congress should not reauthorize this dangerous authority without sweeping reforms. 1/15 intel.gov/assets/documen…
To recap, 702 allows warrantless surveillance and thus can only be targeted at foreigners abroad. But it inevitably sweeps in enormous volumes of Americans’ communications, which the government then deliberately searches for without obtaining a warrant. 2/15
As I’ve said many times, these backdoor searches are a bait and switch that drive a massive hole through the Fourth Amendment. The April 2023 opinion confirms that the FBI is continuing to conduct these searches at a rate of about 200,000/year. 3/15 justsecurity.org/85068/the-year…
Read 15 tweets
Jun 30
The Supreme Court today struck down Biden’s student loan forgiveness program in a decision that calls into question the very rationale for presidential emergency powers… although how consistently the Court will apply this to future emergency actions remains to be seen. 1/15
As I wrote in the @washingtonpost, I believe Biden’s program was a misuse of emergency powers because emergency powers are not meant to provide long-term solutions to longstanding problems (like student loan debt). 2/15 washingtonpost.com/opinions/2022/…
That said, for sudden, short-term crises, Congress delegates extremely broad discretion to the president, on the theory that Congress can’t foresee the universe of actions the president might need to take… 3/15
Read 15 tweets
May 11
The FBI’s Office of Internal Audits (OIA) just released a report on the FBI’s US person queries of raw FISA data, including Section 702. The report strongly underscores the need for Congress to impose a warrant requirement for these queries. 1/11 fbi.gov/news/press-rel…
Some background: according to FBI rules approved by the FISA Court, the FBI may search Section 702 data for Americans’ communications (a “US person query”) only if the search is reasonably likely to return foreign intelligence or evidence of a crime. 2/11
That’s a fairly low bar. And yet in 2018, 2019, and 2020, the FISA Court issued opinions finding that FBI agents had engaged in “widespread violations” of that rule. 3/11
Read 11 tweets
Apr 28
The ODNI’s Annual Statistical Transparency Report is out today. The contents of this report underscore why Congress should not reauthorize Section 702 of FISA this year without wide-reaching surveillance reforms. 1/13 odni.gov/index.php/news…
Let’s start with backdoor searches – i.e., the government’s practice of searching through Section 702 data, obtained without a warrant based on the government’s certification that it is targeting *only* foreigners, to find the communications of Americans. 2/13
We already knew that the FBI conducted about 200,000 these warrantless searches for Americans’ communications in 2022. The report states that the 200,000 queries translate into 119,383 unique U.S. person identifiers. 3/13
Read 13 tweets

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