Congress recently expanded the types of entities that can be compelled to assist with surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA 702) to significantly increase potential surveillance. Key legislators had promised to revisit the types of entities subject to FISA 702 directives. The Senate has now proposed to do so but in a way that would make secret the scope of entities subject to FISA 702.
Background
In response to the Intelligence Community (IC)’s request for more authority to obtain communications without a warrant, Congress passed FISA 702 in 2008. It authorizes the government to compel electronic communication service providers (ECSPs) to disclose specific users’ communications content and metadata, whether stored or in transit, as long as the person or entity targeted for surveillance is a non-U.S. person reasonably believed to be abroad. Because foreign individuals communicate with Americans, any online communications of Americans with FISA 702 targets are also disclosed under FISA 702 surveillance without a warrant.
The balance FISA 702 seeks between national security interests and privacy rights hinges partly on what constitutes an ECSP. The definition effectively limits the scope of authorized surveillance: if a company’s service does not fit within this definition, it cannot be compelled to assist with FISA 702 surveillance on that service.
Evolution of ECSP’s Definition
Initially, ECSP covered companies like Google, AT&T, and Meta that directly facilitate and access communications. However, in April this year, the Reforming Intelligence and Securing America Act of 2024 (RISAA) broadened this definition drastically. Now it includes any entity or person accessing equipment where communications are stored or transmitted—with limited exceptions for restaurants, hotels, dwellings, and community facilities—meaning any business providing WiFi could qualify as an ECSP.
This change responded to losses by IC in cases decided by the Foreign Intelligence Surveillance Court in 2022 and its Review Court in 2023. These courts ruled that a company receiving a FISA directive did not fall under ECSP's definition; thus it could not be compelled to release data. Congress accommodated IC by broadening the definition but faced criticism from experts and civil society.
Narrowing RISAA’s Expansion But Hiding Its Scope
Senator Mark Warner (R-VA), Chairman of the Senate Select Committee on Intelligence (SSCI), promised during RISAA discussions that SSCI would revisit this definition during consideration of the annual Intelligence Authorization Act (IAA). Under his leadership, SSCI voted to amend IAA limiting RISAA's expansion only covering entities discussed in those court decisions—classified information which remains secret.
Problems with Secret Law
While narrowing entities receiving FISA 702 directives improves law substance-wise, keeping it secret hides from public view which businesses will respond under these directives hence concealing full breadth surveillance scope without court authorization or oversight due process challenging directives already burdensome costly closed proceedings difficult since companies lack clarity fitting definitions summarized vaguely general terms hindering proper judicial review processes leading secrecy undermining transparency accountability principles essential democracy protection constitutional rights eroding public trust chilling free expression.
Transparency Instead of Secret Law
Congress should reconsider defining ECSP balancing national security accountability privacy rights appropriately declassifying type described opinions aligning Principles Transparency enhancing public understanding laws governing IC activities consistent other public descriptions similar contexts ensuring democratic oversight evaluating laws holding lawmakers accountable voters' ability respond representatives' actions necessary fostering transparency preventing future precedents dangerous expanding unchecked surveillances undermining citizens’ confidence protections against abuse enabling better-informed legislative decisions reinforcing constitutional integrity safeguarding freedoms liberties democratic societies value cherish.
