After campaigning on a pledge to retaliate against his political enemies, Donald Trump will get expanded spying powers when he returns to the White House next month.
Congress granted surveillance agencies sweeping new authority in April, under pressure from the Biden administration. Civil liberties experts warned that the measure, tacked on as an amendment to the Foreign Intelligence Surveillance Act, or FISA, could be used to force U.S. citizens to work with the National Security Agency, the hub of American cyberspying. Still, Senate Intelligence Committee Chair Mark Warner, D-Va., pushed Congress to pass the legislation, promising during negotiations to “fix” it at a later date with an amendment to the defense budget bill.
In the end, Warner’s effort to limit the scope of the government’s new powers wilted in the face of Republican opposition. The Senate is set to vote this week on a defense spending package that lacks Warner’s proposed amendment — and the incoming Trump administration will likely gain the power to force everyone, from janitors to the Geek Squad, to help it spy.
Warner’s spokesperson pointed to reporting that Republicans blocked the fix, but the Democrats failed to force the issue in closed-door discussions over compromise legislation.
Sen. Ron Wyden, D-Ore., a longtime surveillance critic, said he warned the tool was ripe for abuse when the Biden administration pressured Congress into approving it in April.
“I warned that these powers would inevitably be misused, and no one should be surprised when that happens,” Wyden told The Intercept. “In response, the DOJ” — Department of Justice — “issued a meaningless promise to use its powers responsibly and the bill’s sponsor promised on the Senate floor to amend the provision in the intelligence authorization bill this year.”
“If that fix doesn’t go through and the next administration misuses these sweeping new FISA powers, no one will be able to claim they didn’t see it coming.”
Janitors Turned Spies?
For more than a decade, surveillance boosters have tangled with critics in Congress over NSA powers. The latest battleground arrived this spring as Congress debated its reauthorization of FISA, the law that regulates most U.S. spying directed abroad.
Under FISA, the NSA can force electronic communication service providers such as Google and Verizon to help it spy on foreigners. But a ruling from the U.S. Foreign Intelligence Surveillance Court of Review in 2023 slightly limited the scope of the government’s power.
That ruling was shrouded in secrecy, like many of the directives from the parallel surveillance court system. But what was clear, from a heavily redacted version released to the public, was that an unnamed company did not meet the definition of an “electronic communication service provider” under the law. Sen. Chris Van Hollen, D-Md., later revealed on the Senate floor that the company in question was a data center.
Faced with a rare setback in court, the Biden administration went to Congress for help, requesting legislation that would authorize it to enlist data centers in surveillance. Congress included the new language as part of its two-year reauthorization of FISA — considered “must-pass” legislation by many senators because it allows the government to spy on foreign foes.
Almost anyone with a business who happens to have access to a hard drive could be forced to comply.
Instead of passing an amendment narrowly focused on data centers, however, House Republicans crafted language requiring any “service provider” with access to equipment “that is being or may be used to transmit or store wire or electronic communications” to help the government spy.
The language was so broad that almost anyone with a business who happened to have access to a hard drive could be forced to comply, critics have warned.
The government could force commercial landlords, for instance, to help it scoop up the communications of journalists, nonprofit groups, political campaigns, and lawyers, according to the Center for Democracy and Technology. The janitorial staff at the New York Times might even meet the definition.
The small clutch of legislators who keep an eye on government surveillance began ringing alarm bells with their colleagues.
The Justice Department, for its part, promised there was nothing to worry about, since the law only allows the government to target foreigners with NSA surveillance. That contention ignored the fact that, in practice, the government can easily catch U.S. citizens in its surveillance dragnet, sifting through the “targeted” messages of foreigners abroad for emails, texts, and other communications from and about American citizens. The Biden administration has pushed back against efforts to require a warrant for so-called backdoor searches on Americans.
Although briefly threatened by a social media outburst from Trump, the foreign spying bill went on to win passage in Congress. The overall bill was “indispensable” to protecting the American people from terrorism, cyberattacks, and foreign enemies, Attorney General Merrick Garland told Congress in April. The House amendment, he added, was merely “technical.”
Moreover, the Justice Department said it was making a promise: It would only use its new powers under the House amendment to compel collaboration from the subject of the surveillance court ruling, meaning data centers.
“They are basically saying: We won’t ever use these sweeping authorities you are handing to us,” Wyden said on the Senate floor in April. “That commitment, in my view, is worth nothing. It is not even binding on this administration, and it certainly wouldn’t be binding on future administrations.”
A Far-Off Fix
The reauthorization of FISA was smoothed by a pledge from Warner, the top Senate Democrat on intelligence issues. He told colleagues concerned about the sweeping House amendment that he would work to pass a “fix” scaling down its breadth.
Warner proposed his own language that would limit the scope of the government’s new powers to the type of companies referenced in the surveillance court opinion — namely, data centers — as part of the National Defense Authorization Act, another “must-pass” piece of legislation.
Even this fix had a serious flaw in the eyes of many civil liberties advocates: Instead of applying explicitly to data centers, it referenced the redacted opinion from the surveillance court. Congress would essentially be giving its blessing to secret law. Still, reformers hoped the Warner amendment would address their concerns about janitors or computer repair workers being forced to help the government.
Instead, the Warner amendment died a quiet death in closed-door negotiations. Last Wednesday, the House passed a compromise version of the defense spending bill which did not contain Warner’s fix. On Monday night, the Senate voted to close debate on the compromise legislation, setting up a final vote for later in the week.
With the debate dead for this year, reformers are looking ahead to pass the promised “fix.” The next opportunity won’t arrive until the end of 2025, when a new slate of congressional members will debate the next defense spending bill, or until April 2026, when FISA expires again.
As a Democrat, Warner will no longer chair the intelligence committee, but his spokesperson promised that “he is committed to pursuing this effort, whether it’s in this Congress or the next.”
Still, the fact that the law will remain on the books for months under the Trump administration, at a minimum, has fueled concern among critics inside and outside Congress. The promise from Garland’s Justice Department to interpret current law narrowly could be dropped at a whim by the Trump administration, advocates warn.
And there is no guarantee that the defense spending bill will include a fix next year, when it may face even steeper obstacles. Andrew Crocker, the surveillance litigation director at the Electronic Frontier Foundation, noted that advocates have been pushing for a decade to require a warrant for “backdoor” searches.
“It’s always harder to roll back a power once it’s enacted into law than it is to stop it in its tracks,” Crocker said.
Van Hollen, who along with Wyden took to the Senate floor to beg colleagues to pass a fix this spring rather than push it off to the future, said he remained concerned about abuses going forward.
“I’m disappointed that Congress did not move forward on passing more stringent safeguards this year, including by removing the new definition of what constitutes a ‘electronic communications service provider,’” Van Hollen told The Intercept in a statement. “As our surveillance methods become more sophisticated, we cannot compromise our Constitution and the fundamental rights that Americans hold.”