Co-director of the Liberty and National Security Program at the Brennan Center for Justice, erstwhile oboist, mom of seriously cute twins. Opinions are my own.
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
It’s over (for now). A majority of senators caved to the fearmongering and bush league tactics of the administration and surveillance hawks in Congress, and they sold out Americans’ civil liberties. Section 702 has been reauthorized, not just without any meaningful reforms… 1/10
URGENT: Please read thread below. We have just days to convince the Senate NOT to pass a “terrifying” law (
@RonWyden
) that will force U.S. businesses to serve as NSA spies. CALL YOUR SENATOR NOW using this call tool (click below or call 202-899-8938). 1/25
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
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
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
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
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
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. 6/25
If you care about the First Amendment, please stop everything and read this
@WIRED
article. Tl;dr: House intelligence committee (HPSCI) members are blocking reforms to FISA Section 702 *because they want the FBI to spy on American protesters.* 1/20
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
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
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
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
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
You don’t have to be a legal expert to know that when unidentified federal forces wearing military fatigues snatch people off the streets into unmarked vans, it’s an abuse of power. Still, it’s worth spelling out what rules Trump is getting around and how. 1/14
The provision effectively grants the NSA access to the communications equipment of almost any U.S. business, plus huge numbers of organizations and individuals. It’s a gift to any president who may wish to spy on political enemies, journalists, ideological opponents, etc. 3/10
There are 3 silver linings. First, the many senators who fought so hard to protect our civil liberties. I am particularly grateful to
@RonWyden
,
@SenMikeLee
,
@SenatorDurbin
, and
@RandPaul
, who have led the charge on Section 702 reforms. Please RT to show your appreciation! 6/10
POTUS just now, on declaring a national emergency: "I could do the wall over a much longer period of time... I didn't need to do this." That's plaintiffs' Exhibit A.
Some jaw-dropping news: House intelligence committee (HPSCI) leaders forced Speaker Johnson to CANCEL THE FLOOR VOTE on Section 702 tomorrow, rather than allow members to vote on whether to prohibit warrantless access to Americans’ communications. 1/18
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. Senator Wyden calls this power “terrifying,” and he’s right. 2/25
This bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history. I will do everything in my power to stop it from passing in the Senate.
…but with “one of the most dramatic and terrifying expansions of government surveillance authority in history,” as
@RonWyden
aptly described it. It is nothing short of mind-boggling that 58 senators voted to keep this Orwellian power in the bill. 2/10
I’m sad—and frankly baffled—to report that the House voted today to reward the government’s widespread abuses of Section 702 by massively expanding the government’s powers to conduct warrantless surveillance. 1/14
This is a shameful moment in the history of the United States Congress. It’s a shameful moment for this administration, as well. But ultimately, it’s the American people who pay the price for this sort of thing. And sooner or later, we will. 5/10
If this article is correct and the feds intercepted protesters' cell phone communications without a warrant, that's a blatant violation of the law and the Fourth Amendment. 1/3
The administration and intelligence committee leaders buried senators in a morass of misleading and, in some cases, flatly false statements throughout the week. I think of myself as pretty jaded, and I was still genuinely shaken by how many lies I heard. 4/10
Alarming reports surfacing that Trump intends to invoke the Insurrection Act and deploy the military to enforce immigration laws inside the U.S. I wrote about the danger that Trump would misuse this Act in the
@TheAtlantic
last December:
URGENT: PLEASE KEEP THE CALLS COMING! Call this number (202-899-8938) ASAP to be connected to your Senators and urge them NOT to pass RISAA, which contains a “terrifying” provision (
@RonWyden
) that will force U.S. businesses to serve as NSA spies. 1/12
Second, ALL OF YOU who made calls to your senators over the past week. We can track how many people use the call tool; you made literally thousands of calls each day. I’m in awe, and I also feel like I’m part of a huge, new, wonderful community. From my heart, I thank you. 7/10
THERE WILL BE SENATE VOTES ON SECTION 702 TODAY. Please call this number (202-899-8938) ASAP to be connected to your Senators and urge them to vote “NO” on RISAA, which contains a “terrifying” provision (
@RonWyden
) that will force U.S. businesses to serve as NSA spies. 1/9
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. 7/25
When the amendment was first unveiled, one of the FISA Court amici took the highly unusual step of sounding a public alarm. Civil liberties advocates noted that the provision would encompass hotels, libraries, and coffee shops. 9/25
I’ll have more to say about all of this later, but I’m taking the next week off for a vacation with family. In the immortal words of Tommy Lee Jones, “I need the rest.” And then… back to the fight! 10/10
…which they can do by including those changes in an upcoming must-pass vehicle, like the National Defense Authorization Act. I’ll keep you all posted on those efforts. Let’s hold them to their promises. 9/10
Declaring a national emergency to build the wall would be an abuse of emergency powers. But Congress left the door wide open to this abuse by giving the president complete discretion to declare a national emergency. See my article in
@TheAtlantic
:
Third—and very much related—because of the heat we were able to bring, we extracted some promises from the administration and the Senate intelligence committee chair. I do think they’ll be forced to make SOME changes to mitigate the worst parts of the law… 8/10
THANK YOU to the *thousands* of you who have made calls—WE NEED TO KEEP THEM COMING! Call 202-899-8938 to be connected to your Senators & urge them to vote “NO” on RISAA, which contains a “terrifying” provision (
@RonWyden
) that will force U.S. businesses to act as NSA spies. 1/6
I’ll explain how this new power works. Under current law, the government can compel “electronic communications service providers” that have direct access to communications to assist the NSA in conducting Section 702 surveillance. 3/25
There are certain powers a government should not have in a democracy. The ability to force ordinary businesses and individuals to serve as surrogate spies is one of them. Even if the targets are supposed to be foreigners, a power this sweeping WILL be abused. 19/25
In practice, that means companies like Verizon and Google must turn over the communications of the targets of Section 702 surveillance. (The targets must be foreigners overseas, although the communications can—and do—include communications with Americans.) 4/25
It also includes commercial landlords that rent out the office space where tens of millions of Americans go to work every day—offices of journalists, lawyers, nonprofits, financial advisors, health care providers, and more. 8/25
I cannot overstate how mindblowingly irresponsible that is. I don’t think *any* administration should be trusted with an Orwellian power like this one. But even if *this* administration doesn’t plan to make full use of it… (Go ahead and fill in the blank.) 18/25
The amendment even extends to service providers who come into our homes. House cleaners, plumbers, people performing repairs, and IT services providers have access to laptops and routers inside our homes and could be forced to serve as surrogate spies. 11/25
The version HPSCI leaders offered Friday therefore exempts… hotels, library shops, and coffee shops, plus a handful of other establishments. But as the FISA Court amicus promptly pointed out, the vast majority of U.S. businesses remain fair game. 10/25
None of these people or businesses would be allowed to tell anyone about the assistance they were compelled to provide. They would be under a gag order, and they would face heavy penalties if they failed to comply with it. 12/25
If you believe the government should have to get a warrant to read Americans’ communications, CALL YOUR SENATORS AND TELL THEM “NO SECTION 702 EXTENSION ON THE NDAA WITHOUT A CERTIFICATION CAP.” What does that mean? I’ll explain. 1/15
That’s not even the worst part. Unlike Google and Verizon, most of these businesses and individuals lack the ability to isolate and turn over a target’s communications. So they would be required to give the NSA access to the equipment itself… 13/25
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. (Let that sink in.) 15/25
The Senate MUST stop this train before it is too late. The Senate is scheduled to vote on the House-passed bill this week. If there’s an opportunity to remove this provision, senators should remove it. If not, they should vote against the bill. 21/25
In short, the use of a secret federal paramilitary force in Portland (and soon Chicago and likely other cities) is every bit the abuse of power that it appears to be. And it’s an abuse we can expect to see again in November if the administration isn’t called to account. 14/14
Through a seemingly innocuous change to the definition of “electronic communications surveillance provider,” an amendment offered by House intel committee (HPSCI) leaders and passed by the House vastly expands the universe of entities that can be compelled to assist the NSA. 5/25
…so they hid the real goal by writing the amendment as broadly and vaguely as possible. But no worries, Americans! The administration isn’t actually going to USE all the power it just persuaded the House to give it. 17/25
…or to use techniques or devices (presumably provided by the NSA) to copy and turn over entire communications streams and/or repositories of stored communications, which would inevitably include vast quantities of wholly domestic communications. 14/25
The White House will tell senators they have no choice other than to pass the House bill, because Section 702 expires on April 19, and trying to fix the House bill—or pass different legislation—would take too long. But the April 19 deadline exists only on paper. 22/25
By the way, when a privacy advocate tried to get
@jahimes
to engage on this issue, here is the thoughtful and conscientious reply given by the ranking member of HPSCI, a man who clearly cares deeply about civil liberties. 20/25
@SeanVitka
You do that. But life is really too short to engage with people who need to use bombastic absurdities like “Stasi-like”. Yes I know exactly what is in there. Some of it is classified. And none of it is remotely “Stasi-like”. Sell your nonsense elsewhere.
Wow. The disregard for Americans' civil liberties in this reply is staggering. This provision allows the NSA to force a huge range of ordinary U.S. businesses to assist the NSA in Section 702 surveillance. That's not "nonsense," that's a fact. And this is your response??
@SeanVitka
You do that. But life is really too short to engage with people who need to use bombastic absurdities like “Stasi-like”. Yes I know exactly what is in there. Some of it is classified. And none of it is remotely “Stasi-like”. Sell your nonsense elsewhere.
Yesterday, I tweeted about how House intelligence committee leaders (HPSCI) scuttled a floor vote on Section 702 rather than allow members to enact reforms. That’s bad behavior, even by Congress’s standards. It turns out it was worse than I thought. 1/13
Some jaw-dropping news: House intelligence committee (HPSCI) leaders forced Speaker Johnson to CANCEL THE FLOOR VOTE on Section 702 tomorrow, rather than allow members to vote on whether to prohibit warrantless access to Americans’ communications. 1/18
If that happens, BE READY to make some serious noise. Members don’t need HPSCI’s permission to enact reforms. They must be given the opportunity to vote on a Section 702 bill and pass reforms that will rein in surveillance abuses and protect Americans’ civil liberties. 18/18
The first amendment would put in place the largest expansion of domestic surveillance since the PATRIOT Act… and I don’t say that lightly. It would hugely inflate the universe of companies required to assist the government in conducting surveillance. 6/21
That’s bad enough. But the House also voted for the amendment many of us have been calling “Patriot Act 2.0.” This will force ordinary American businesses that provide wifi to their customers to give the NSA access to their wifi equipment to conduct 702 surveillance. 6/14
The House will vote on Section 702 TOMORROW MORNING. If you think warrantless surveillance should be reined in rather than massively expanded, PLEASE USE THIS CALL TOOL ASAP (click below or call 202-899-8938) & leave a message if you get VM. 1/21
HPSCI leaders deny that the administration has any intent to use this provision so broadly. Supposedly, there is a single type of service provider that the government wants to rope in. But they didn’t want anyone to know what that service provider was… 16/25
In fact, the federal agents in Portland seem more interested in breaking laws than enforcing them. They’re arresting people without probable cause (far from any federal property) and deliberately creating no records of the arrest so they can deny it ever happened. 13/14
The administration has already obtained FISA Court approval to continue Section 702 surveillance until April 2025. According to the administration itself, that approval “grandfathers” surveillance for a full year, even if Section 702 expires. 23/25
ODNI just released a FISA Court opinion from Dec. 2019 approving Section 702 collection for another year. The opinion reveals multiple violations by the FBI, NSA, and CIA of the rules that are designed to protect Americans’ constitutional rights. That should be shocking… 1/17
.
@SpeakerJohnson
has caved to the House Intelligence Committee’s bush league tactics and will block votes on a key reform when Section 702 reauthorization goes to the House floor this week. 1/12
HPSCI leaders have been waging a propaganda campaign all week to try to tank this and other reforms… but it’s not working. They saw the writing on the wall. In HPSCI’s view, if members won’t vote the way HPSCI tells them to on Section 702, they shouldn’t get to vote at all. 2/18
Congress should act *now* to try to block this abuse of power, and the courts should play their constitutional role. But unless we want to see more of this kind of abuse in the future, we need to get serious about National Emergencies Act reform. 13/13
There is no compromising on our Fourth Amendment rights. Johnson should bring the Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act to the floor immediately in the New Year. Call his office or retweet if you agree!
@SpeakerJohnson
Let’s back up and review how we got here. The House Judiciary Committee passed a bill that includes a warrant requirement and other key reforms to protect Americans’ civil liberties, while leaving untouched the core of Section 702: the ability to monitor *foreign* threats. 3/18
HPSCI, by contrast, passed a bill that’s designed to look like reform while doing nothing at all. It would allow the FBI to continue abusing Section 702, a warrantless surveillance authority that’s supposed to be targeted only at foreigners abroad, to spy on Americans. 4/18
Second, if HPSCI can’t win on an even playing field, it will look for another way. I strongly suspect we will see a HPSCI-driven effort to attach a straight reauthorization of Section 702 (or their own bill) into the upcoming continuing resolution. 17/18
I’m not kidding. The bill actually does that. If you have any doubts, read this post by a FISA Court amicus, who took the unusual step of going public to voice his concerns. Too bad members of the House didn’t listen. 7/14
Reporting from
@politico
suggests House intelligence committee leaders want at least part of the floor debate on Section 702 to happen IN SECRET. If true, these are bush league tactics and a new low for opponents of surveillance reform. 1/8
Interesting 702 update (👋 folks watching the Super Bowl):
-Lawmakers warning the House will go into “secret session” for part of the debate. Would be first time since 2008
-no final text/amendment deal yet but expectation is still for bill on the floor toward end of the week
I’m sorry to report that lawmakers caved to abject fearmongering by the administration & surveillance hawks in Congress and passed a de facto 16-month extension of Section 702 as part of the NDAA this morning. 1/5
From the moment he was elected president, Trump has been itching for an excuse to “send in the feds” to “take over” states or cities with Democratic leaders. The threats started even before inauguration. 2/14
The amendment to require the gov’t to obtain a warrant to search Section 702 data for Americans’ communications failed by an achingly close vote of 212-212, following some truly shameless misrepresentations about the amendment from
@MikeTurnerOH
, the White House, & others. 2/14
That means there is NO RUSH. It’s critical that Congress get this right. The House got it massively, egregiously wrong. It must be fixed in the Senate, however long it takes. Please call your senators and urge them not to pass this disgraceful bill. 14/14
In repeated public statements, Trump has made it quite clear that he’s deploying federal law enforcement officials to do the job (as he sees it) of state police. The notion that the feds are there to protect federal property is pure pretext. 12/14
Once again, it’s not supposed to work this way. Ensuring public safety – during protests or otherwise – is the quintessential state police power, which is reserved to the states under the Tenth Amendment to the U.S. Constitution. 9/14
Members whom I previously considered to be civil liberties champions (they know who they are) inexplicably abandoned the principles they have espoused in the past and voted to leave Americans vulnerable to continuing surveillance abuses. 4/14
Check out this list of how members voted. If your representative voted the wrong way, don’t be quiet about it. Look up their office phone number (it’s easy), give them a call, and let them know how you feel about their disregard of your rights. 5/14
Of course, in this country, the president can’t just “take over” states and cities. Although Trump seems not to know it, the federal government’s powers under the Constitution are limited. So Trump and his Attorney General have been trying out legal loopholes. 3/14
If any lawmakers were still on the fence and waiting for a smoking gun, THIS IS IT. Turner has made the stakes crystal clear. A vote to reauthorize Section 702 without a warrant requirement is a vote to allow the FBI to keep tabs on protesters exercising 1st Amdt rights. 18/20
Opponents branded the notion that the government should need a warrant to read Americans’ communications—the core of the Fourth Amendment and the guiding principle for searching Americans’ private correspondence for more than 200 years—as “extreme.” 3/14
Declaring an emergency when none exists in order to build a border wall that Congress has refused to fund is an abuse of emergency powers. NOT declaring an emergency when one DOES exist in order to get reelected is also an abuse of emergency powers. 6/6
President Trump just became the first president in our country’s history to suggest postponing a presidential election. Elections were held on schedule, and without question, during the War of 1812, the Civil War, the Spanish flu, and World War II. 1/4
The House Judiciary Committee is the committee of jurisdiction, and its bill passed through committee almost unanimously (35-2). As such, Johnson should have brought the HJC bill to the floor and allowed HPSCI members (and others) to offer amendments. 6/18
The Rules Committee, however, had to sign off on this ploy, and it refused to go along with it. At that point, Johnson had another chance to do the right thing and bring the HJC bill to the floor. But once again, that’s not what happened… 8/18
I know it seems like we're all drinking from a fire hose of outrageous scandals, and we have to pick our battles. But if we don't fight *this* battle, we lose the war. Congress, don't let this one slide! 3/3
(To save space, I’m using “HPSCI” in this thread as shorthand for HPSCI leaders, but not all HPSCI members oppose reform.
@JoaquinCastrotx
, for instance, spoke eloquently at the HPSCI bill’s markup about surveillance abuses and the flaws & deficiencies in the bill.) 5/18
So in Portland, the administration is trying out another tactic: using federal law enforcement units as a paramilitary force to “restore order” against state/local wishes. (Law enforcement has become so thoroughly militarized, it can play the part for practical purposes.) 8/14
If we’ve learned one thing about surveillance over the past 20 years, it’s that secrecy and surveillance abuses go hand in hand. House members should unite in opposition to this ploy and demand open debate on surveillance reform. 8/8