The Senate reauthorized an anti-terrorism surveillance law just after midnight Friday, overcoming objections from lawmakers worried the revamp did not do enough to protect Americans’ privacy.
The Senate rushed to vote, 60 to 34, in favor of the two-year renewal, barely missing approving it ahead of the law’s midnight expiration. With the House having passed the bill last week, it was set to go to the White House for President Joe Biden’s signature.
Section 702 of the Foreign Intelligence Surveillance Act allows the U.S. to keep tabs on the communications of foreign nationals abroad. But critics say the law has been misused to spy on Americans, whose communications with foreign surveillance targets are often also swept up.
It was unclear until only a few hours before Section 702’s slated midnight expiration whether there would be at least a small lapse in the spying authority. A final deal on what amendments to consider was reached late in the evening.
Civil liberties advocates warned that a technical amendment made in the House vastly expanded the scope of the law to new electronic communication service providers. A vote to remove the provision, which would have meant sending the bill back to the House and letting it lapse, was the bill’s last major hurdle on the way to Senate passage.
At issue was a change in the House that drew little comment at the time. Rep. Mike Turner (R-Ohio), the chairman of the House Intelligence Committee, had successfully offered an amendment described as “narrowly updating the definition of electronic communication service provider.”
The amendment expanded the scope of communication service providers to also include individuals with access to equipment used to transmit or store electronic communications.
“This means anyone with access to a server, a wire, a cable box, a WiFi router or a phone,” said Sen. Ron Wyden (D-Ore.) after the bill passed the House.
Sen. Mark Warner (D-Va.), chairman of the Senate Intelligence Committee, said Thursday that the amendment was meant to close a legal loophole opened by the rise in Internet cloud data centers that didn’t exist when the law was written and that it was not an actual expansion of the law.
“Now, I think the amendment could have been drafted better,” Warner said Thursday. He also pointed to a Department of Justice memo saying it would adopt a narrow interpretation of the language.
The amendment to remove the language failed on a 34 to 58 vote.
“With President Biden’s signature a foregone conclusion, this bill will represent the most radical and dangerous expansion of federal surveillance powers in U.S. history, and in terms of Americans’ digital communications, it will effectively render the Fourth Amendment a dead letter,” said Patrick Eddington, a senior fellow at the libertarian Cato Institute.
Sen. Mike Lee (R-Utah), an opponent of the bill, said lawmakers did not need to fear the midnight expiration deadline because private companies would continue to collect data, at least temporarily.
With the House and Senate both expected to have rare Saturday sessions, Lee joked on the floor that the bill could be sent back to the House with fixes before both chambers leave for a scheduled weeklong break.
“As they set this up a couple of centuries ago, we both work in the same building,” he said of the House. “They’re just down the hall.”
