Biden administration to Senate: FISA bill doesn't expand scope of targets

The Biden administration is working to reassure senators that a key surveillance bill does not broaden the scope of those who can be targeted, hoping to push through reauthorization legislation before the weekend as critics threaten to derail quick passage.

With a Friday deadline to avoid a lapse in Section 702 of the Foreign Intelligence Surveillance Act, which allows warrantless surveillance of foreign targets, House members added a provision to cover new types of data service providers. Though the administration and supporters on Capitol Hill say it’s necessary to keep up with advances in technology over the past 15 years, the inclusion has prompted critics to warn the new bill amounts to “a vast expansion of surveillance authorities,” as Sen. Ron Wyden (D-Ore.) said Tuesday.

In a memo distributed to Senate offices and obtained by POLITICO, the administration argues the legislation “does not expand the scope” of who can be targeted and includes “explicit limitations” on how the updated law can be used, including hotels, restaurants and peoples’ houses. White House national security adviser Jake Sullivan said Wednesday the language “is a technical fix designed to account for changing technological realities.”

In a statement, Assistant Attorney General for National Security Matthew Olsen said “any assertion that the bill would authorize the targeting of small businesses, schools, or places of worship is simply false and represents a basic misunderstanding of the rules that govern the program.“

“The House-passed legislation does not at all expand the scope of who can be targeted under Section 702, which is strictly limited to non-Americans overseas. The technical update to the definition of the types of communications providers covered by the law is necessary to ensure foreign adversaries cannot exploit technology advances as a safe haven to communicate using U.S. infrastructure,” Olson added.

The legislation marks a key clash between the intelligence community and its supporters and longtime skeptics of government surveillance programs. At the moment, critics of the programs have the leverage to force a brief shutdown in protest of the legislation in front of them.

Wyden prebutted much of the government’s arguments in his floor speech Tuesday, declaring that “anyone who votes to give the government vast powers under the premise that intelligence agencies won’t actually use it is being shockingly naive. “ He said the “random exceptions” in the bill means that there will be a “huge range of companies and individuals to spy for the government.”

The Senate will take its first vote on the FISA legislation on Thursday and will need to cut a deal on debate time and amendments to avoid a technical lapse of the program’s warrantless surveillance authority, which is prohibited from targeting Americans but incidentally does sweep up communications between Americans and foreign surveillance targets. Critics say there’s little rush since a court just renewed the government’s surveillance authorities into 2025, though the bill’s supporters say this is not the time to risk potential intelligence failures.

The Senate could in theory amend the bill to strip out the provision, but there’s likely not enough time to send it back to the House. Either way, the administration and intelligence community supporters will probably have to beat back several amendments to win passage of the bill, including efforts to require a warrant to search the database for communications with Americans, bar the collection of Americans’ information altogether and prohibit the government from purchasing information about Americans.