Surveillance expansion threatens press freedom – and everyone else's

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The Senate today voted to advance a bill that would allow intelligence agencies to order everyone from dentists to plumbers to surveil their patients and customers’ communications. A final Senate vote on the bill is expected in the coming days.

The Reforming Intelligence and Securing America Act, or RISAA, which the House passed last Friday, could also allow the government to order commercial landlords who rent space to media outlets, or contractors who service newsrooms like electricians or HVAC technicians, to help it spy on American journalists’ communications with foreign sources.    

Seth Stern, director of advocacy at Freedom of the Press Foundation (FPF), said, “This bill would basically allow the government to institute a spy draft. It will lead to significant distrust between journalists and sources, not to mention everyone else.” 

“Journalists need to be able to promise sources confidentiality in order to do their jobs effectively,” Stern said. “If this bill becomes law, sources will rightly suspect that American newsrooms are bugged by the government. And journalists won’t be able to reassure them that they’re not, because, for all they know, the building maintenance worker is an involuntary government spy.” 

Stern, along with FPF founding board member John Cusack, recently wrote about their opposition to the bill in the Chicago Sun-Times.   

FPF isn’t alone in sounding the alarm. Sen. Ron Wyden noted that, under the bill, cleaning services and security staff could be compelled to insert a USB thumb drive into a server at an office they clean or guard at night. Civil liberties organizations from across the political spectrum vehemently oppose the bill. 

The Department of Justice has attempted to assuage concerns with two primary (and self-contradictory) arguments: One, that RISAA is narrowly tailored to close specific gaps in current surveillance authority, and two, that the Biden administration promises to behave itself and not to use the full scope of the authority RISAA grants it.   

The language is not narrowly tailored: While the New York Times reports that Congress’ real focus is on data centers, the bill as written allows the government to conscript any “service provider,” save a few exceptions, to help it spy. 

Stern explained, “Even if the bill is intended to target data centers, it doesn’t say that. And, even if one trusts the Biden administration to honor its pinky swears, they’re not binding on any future administrations.” 

The DOJ has also argued that RISAA would allow the government to spy only on foreign targets authorized under Section 702 of the Foreign Intelligence Surveillance Act, or FISA. But that argument applies the wrong framework, Stern explained. 

“It’s not about who RISAA allows the government to spy on, it’s about who RISAA allows the government to force to spy,” he said. “Regardless of whether the end target of the surveillance is a foreigner, it’s indisputable that the people the government can enlist to conduct the surveillance are Americans. And what’s more, these civilians ordered to spy would be gagged and sworn to secrecy under the law.”    

Not only that, the government could be putting them in physical danger. What happens if they get caught, and threatened, assaulted, or worse?

Besides, Section 702 is frequently abused to spy on Americans, including journalists, as it stands. That law allows the government to compel big tech companies to turn over communications involving foreign targets. But surveillance operations targeting foreigners inevitably sweep up Americans’ communications as well, and the government often searches them without a warrant — a loophole that the House declined to close when it passed RISAA. (The Senate needs to fix that too).  

“A newspaper’s landlord isn’t likely able, or willing, to sift through communications to find the ones the government wants. They’re going to hand over everything they capture,” Stern said. “Even assuming that the government doesn’t search or review all those communications, are potential news sources going to be willing to take that chance?” 

“It’s not about whether the government will abuse its authorities tomorrow, or even in the next few years,” said Stern. “History has taught us that if the government is given this kind of power it will eventually use it. It’s a question of when, not if. The Senate knows that, and it should care about repercussions of its actions even when they might not come to fruition until sitting senators are out of office.”

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