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"This threat is emerging the day before a vote on reauthorizing vast domestic spying capabilities?" wrote one journalist. "What are the chances!"
The House Republican leadership on Wednesday abruptly canceled planned floor votes on mass surveillance reforms shortly after unnamed U.S. intelligence officials told multiple news outlets that Russia has made alarming progress on a space-based nuclear weapon purportedly designed to target American satellites.
The timing of the intelligence leak raised suspicions among journalists and lawmakers who support reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA), authority that allows U.S. agencies to spy on non-citizens located outside of the country.
The Federal Bureau of Investigation and National Security Agency have regularly abused Section 702 to collect the data of American journalists, activists, and even members of Congress without a warrant—abuses that have spurred the latest push for reforms.
"Very interested to learn about this threat," said Sen. Mike Lee (R-Utah), who is part of the ideologically diverse coalition that wants substantive FISA changes. "Also very interested to know why the spy guys are raising mysterious alarms right before we're about to reform illegal domestic surveillance under FISA."
Lee's comment came in response to a vaguely menacing statement from Rep. Mike Turner (R-Ohio), chair of the House Permanent Select Committee on Intelligence.
Turner said Wednesday morning that the committee provided all members of Congress with "information concerning a serious national security threat," without providing any specific details.
"I am requesting that President [Joe] Biden declassify all information related to this threat so that Congress, the administration, and our allies can openly discuss the actions necessary to respond to this threat," added Turner, an outspoken supporter of upholding federal agencies' mass spying authority under Section 702.
The Intercept's Ken Klippenstein noted that Turner "has tweeted out support for 702 at least a dozen times in the past year alone."
"I wonder if that has anything to do with his decision to apprise us of this ominous threat!" Klippenstein wrote in his newsletter.
Klippenstein's colleague at The Intercept, Daniel Boguslaw, had a similar reaction to Turner's statement.
Wow. This threat is emerging the day before a vote on reauthorizing vast domestic spying capabilities? And the head of the house intel wants to declassify it? What are the chances! https://t.co/2sKCn3P3nY
— Daniel Boguslaw (@DRBoguslaw) February 14, 2024
Reporting by The New York Times, ABC News, and other prominent outlets soon made clear that the secret information Turner referenced was related to Russian anti-satellite weaponry, which Moscow has been working on for years.
But officials and lawmakers privy to the intelligence, which was reportedly obtained under Section 702 authority, were quick to stress that the "serious national security threat" that Turner invoked was in no way imminent.
"It is a serious national security issue in the medium-to-long term that the Congress and the administration need to focus on," said Rep. Jim Himes (D-Conn.), the top Democrat on the House Intelligence Committee. "But no need to buy gold."
Which begs the question: If the supposed threat to U.S. national security isn't urgent, why did Turner choose to raise the issue a day before the House was set to vote on whether to reform and reauthorize Section 702?
Citing one unnamed U.S. official, The Washington Post reported that Turner "appears to want to use the information about the adversary capability to convince skeptical colleagues that 702 is an indispensable intelligence tool."
"Lawmakers in the House and Senate have been in possession of the raw intelligence concerning the foreign capability for several weeks and were preparing to learn how the administration might respond," the Post added. "Turner's disclosure could make that response more difficult if it revealed information about how the intelligence was obtained in the first place."
In the wake of the flurry of news stories on the U.S. intelligence, Raj Shah, a spokesperson for House Speaker Mike Johnson (R-La.), announced on social media that the GOP leadership has decided to postpone a vote on Section 702 reform and reauthorization indefinitely "to allow Congress more time to reach consensus."
Without congressional action, Section 702 will expire on April 19.
"The FBI's boosters on the Intelligence Committee are afraid to vote on key reforms—but these votes are long overdue and something the American people deserve."
Elizabeth Goitein, co-director of the Liberty and National Security program at the Brennan Center for Justice, called Johnson's decision to cancel Thursday's votes "jaw-dropping" and accused members of the House Intelligence Committee of "waging a propaganda campaign" to tank popular, bipartisan reform efforts.
Last month, the House Judiciary Committee overwhelmingly passed legislation that would require "all intelligence agencies and the FBI to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before conducting any query of a U.S. person," along with other reforms.
The House Permanent Select Committee on Intelligence passed its own bill that Goitein argued is "designed to look like reform while doing nothing at all," allowing the FBI to "continue abusing Section 702."
Because the House judiciary panel has jurisdiction over surveillance matters, Johnson should have run with its bipartisan bill, Goitein wrote.
"Instead, Johnson orchestrated a new bill, framed as a 'compromise' but in fact closely tracking HPSCI's bill," Goitein wrote, alluding to the Reforming Intelligence and Securing America Act.
Let’s review. The Chair of HPSCI made a public statement that frightened the American people, may have compromised intelligence sources, and was wholly unnecessary given the absence of any urgent threat, in order to gin up a new (bogus) argument against Section 702 reform. 12/13
— Elizabeth Goitein (@LizaGoitein) February 15, 2024
Sensing broad support for reform, Section 702 supporters on Wednesday gummed up the works during a House Rules Committee hearing on the new legislation. Johnson then yanked the bill, which reform advocates were trying to amend to include greater privacy protections.
Jake Laperruque, deputy director on surveillance at the Center for Democracy and Technology, said in a statement that "privacy advocates and Judiciary Committee leadership made clear this week that we are ready and eager to vote on FISA, and the surveillance loopholes that are misused to evade warrant rules."
"The FBI's boosters on the Intelligence Committee are afraid to vote on key reforms—but these votes are long overdue and something the American people deserve," Laperruque added. "It's time to stop punting and bring the debate over warrantless FISA surveillance to the House floor."
"We trusted the government not to screw us," said Edward Snowden. "But they did. We trusted the tech companies not to take advantage of us. But they did. That is going to happen again, because that is the nature of power."
With this week marking 10 years since whistleblower Edward Snowden disclosed information to journalists about widespread government spying by United States and British agencies, the former National Security Agency contractor on Thursday joined other advocates in warning that the fight for privacy rights, while making several inroads in the past decade, has grown harder due to major changes in technology.
"If we think about what we saw in 2013 and the capabilities of governments today," Snowden told The Guardian, "2013 seems like child's play."
Snowden said that the advent of commercially available surveillance products such as Ring cameras, Pegasus spyware, and facial recognition technology has posed new dangers.
As Common Dreams has reported, the home security company Ring has faced legal challenges due to security concerns and its products' vulnerability to hacking, and has faced criticism from rights groups for partnering with more than 1,000 police departments—including some with histories of police violence—and leaving community members vulnerable to harassment or wrongful arrests.
Law enforcement agencies have also begun using facial recognition technology to identify crime suspects despite the fact that the software is known to frequently misidentify people of color—leading to the wrongful arrest and detention earlier this year of Randal Reid in Georgia, among other cases.
"Despite calls over the last few years for federal legislation to rein in Big Tech companies, we've seen nothing significant in limiting tech companies' ability to collect data."
Last month, journalists and civil society groups called for a global moratorium on the sale and transfer of spyware like Pegasus, which has been used to target dozens of journalists in at least 10 countries.
Protecting the public from surveillance "is an ongoing process," Snowden told The Guardian on Thursday. "And we will have to be working at it for the rest of our lives and our children's lives and beyond."
In 2013, Snowden revealed that the U.S. government was broadly monitoring the communications of citizens, sparking a debate over surveillance as well as sustained privacy rights campaigns from groups like Electronic Frontier Foundation (EFF) and Fight for the Future.
"Technology has grown to be enormously influential," Snowden told The Guardian on Thursday. "We trusted the government not to screw us. But they did. We trusted the tech companies not to take advantage of us. But they did. That is going to happen again, because that is the nature of power."
Last month ahead of the anniversary of Snowden's revelations, EFF noted that some improvements to privacy rights have been made in the past decade, including:
"Despite calls over the last few years for federal legislation to rein in Big Tech companies, we've seen nothing significant in limiting tech companies' ability to collect data... or regulate biometric surveillance, or close the backdoor that allows the government to buy personal information rather than get a warrant, much less create a new Church Committee to investigate the intelligence community's overreaches," wrote EFF senior policy analyst Matthew Guariglia, executive director Cindy Cohn, and assistant director Andrew Crocker. "It's why so many cities and states have had to take it upon themselves to ban face recognition or predictive policing, or pass laws to protect consumer privacy and stop biometric data collection without consent."
"It's been 10 years since the Snowden revelations," they added, "and Congress needs to wake up and finally pass some legislation that actually protects our privacy, from companies as well as from the NSA directly."
The U.S. Supreme Court today denied the Wikimedia Foundation’s petition for review of its legal challenge to the National Security Agency’s (NSA) “Upstream” surveillance program. Under this program, the NSA systematically searches the contents of internet traffic entering and leaving the United States, including Americans’ private emails, messages, and web communications. The Supreme Court’s denial leaves in place a divided ruling from the U.S. Court of Appeals for the Fourth Circuit, which dismissed Wikimedia’s case based on the government’s assertion of the “state secrets privilege.”
“The Supreme Court’s refusal to grant our petition strikes a blow against an individual’s right to privacy and freedom of expression — two cornerstones of our society and the building blocks of Wikipedia,” said James Buatti, legal director at the Wikimedia Foundation. “We will continue to champion everyone’s right to free knowledge, and urge Congress to take on the issue of mass surveillance as it evaluates whether to reauthorize Section 702 later this year.”
In its petition, the Wikimedia Foundation, the nonprofit that operates Wikipedia and other Wikimedia free knowledge projects, argued that its challenge should be allowed to proceed, despite the government’s sweeping invocation of “state secrets.” This privilege allows the government to withhold information in legal proceedings if disclosure would harm national security. Wikimedia sought to move forward in the case based on the wealth of public information about the breadth and operation of Upstream surveillance, including numerous official disclosures by the government itself.
The American Civil Liberties Union, the Knight First Amendment Institute at Columbia University, and the law firm Cooley LLP represented the Wikimedia Foundation in the litigation.
Upstream surveillance is conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits the government to intercept Americans’ international communications without a warrant, so long as it is targeting individuals located outside the U.S. for foreign intelligence purposes. Section 702 will expire later this year unless it is reauthorized by Congress.
In the course of this surveillance, both U.S. residents and individuals located outside the U.S. are impacted. The NSA copies and combs through vast amounts of internet traffic, including private data showing what millions of people around the world are browsing online, from communications with friends and family to reading and editing knowledge on Wikipedia and other Wikimedia projects. This government surveillance has had a measurable chilling effect on Wikipedia users, with research documenting a drop in traffic to Wikipedia articles on sensitive topics, following public revelations about the NSA’s mass surveillance in 2013.
“The Supreme Court let secrecy prevail today, at immense cost to Americans’ privacy,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “We depend on the courts to hold the government to account, especially when it wields powerful new technologies to peer into our lives like never before. But the Supreme Court has again allowed the executive branch to hide abuses behind unjustifiable claims of secrecy. It is now up to Congress to insist on landmark reforms that will safeguard Americans in the face of the NSA’s mass spying programs.”
“This decision is a blow to the rule of law,” said Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University. “The government has now succeeded in insulating from public judicial review one of the most sweeping surveillance programs ever enacted. If the courts are unwilling to hear Wikimedia’s challenge, then Congress must step in to protect Americans’ privacy by reining in the NSA’s mass surveillance of the internet.”
The Wikimedia Foundation, which filed the case alongside eight other plaintiffs, sued the NSA in 2015 to protect the rights of Wikipedia readers, editors, and internet users globally.
Lawyers representing the Wikimedia Foundation in the litigation include Patrick Toomey, Ashley Gorski, and Sarah Taitz for the American Civil Liberties Union; Alex Abdo and Jameel Jaffer for the Knight First Amendment Institute at Columbia University; and Ben Kleine, Aarti Reddy, and Maximilian Sladek de la Cal from the law firm Cooley LLP. Wikimedia v. NSA is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.