Intelligence community largely won House FISA fight. Now comes the US Senate.

It seems the amendment is meant to include data centers, but it’s worded much broader than that:

'Call Your Senator Now': Privacy Advocates Ramp Up Effort to Stop Spying Expansion (Common Dreams)

In 2022, the Times noted, the FISA Court "sided with an unidentified company that had objected to being compelled to participate in the program because it believed one of its services did not fit the necessary criteria." Unnamed people familiar with the matter told the newspaper that "the judges found that a data center service does not fit the legal definition of an 'electronic communications service provider'"—prompting the bipartisan effort to expand the reach of Section 702.

"While the Department of Justice wants us to believe that this is simply about addressing data centers, that is no justification for exposing cleaning crews, security guards, and untold scores of other Americans to secret Section 702 directives, which are issued without any court review," Vitka said Tuesday. "Receiving one can be a life-changing event, and Jim Himes appears not to have any sense of that. The Senate must stop this provision from advancing."

From the article:

A bill to reauthorize the nation’s warrantless spy powers is headed to the Senate in what is largely viewed as a victory for the intelligence community, as the House declined to require authorities to first get a warrant and added several other provisions opposed by privacy hawks.

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[…] they approved a suite of amendments from an earlier House Intelligence bill dealing with Section 702 of FISA, including allowing its use for anyone entering the country as well as another provision requiring a greater number of electronic service providers to aid the government in surveilling foreigners.

“This bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history,” Sen. Ron Wyden (D-Ore.), a member of the chamber’s Intelligence Committee who has pushed for reforms to Section 702, wrote on social platform X shortly after the passage of the House bill.

“I will do everything in my power to stop it from passing in the Senate.”

His ally on the issue Sen. Mike Lee (R-Utah) urged the body via a post on X to “Fix FISA 702. Or shut it down.”

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The bill includes a number of reforms, including drastically limiting the number of personnel who can sign off on any queries of the 702 database involving those in the U.S. and also requires an after-the-fact audit for all U.S. person searches.

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The House approved an amendment from the two Intelligence leaders that changes the definition of an electronic communications service provider.

A one-page explanation from the House Intelligence majority said the shift in definition closes a loophole created by the Foreign Intelligence Surveillance Court by exempting “a specific type of provider,” while a separate explanation from the minority said the effort is “designed to respond to a very specific (and classified) fact pattern.”

The heavily redacted court opinion leaves unclear the particulars that prompted the intelligence community to seek a legislative fix.

It’s a revamp of an earlier provision in the House Intelligence bill that sparked concern the language would open up businesses like restaurants and hotels to having to share data created by their patrons while using their internet.

The latest version of the amendment, now a part of the bill, specifically exempts many businesses that serve the public, like restaurants, hotels and libraries, as well as private homes. Still, it’s drawn the ire of privacy advocates.

“Everyone was so focused on the warrant requirement that frankly, people weren’t paying that much attention to this amendment,” said Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty & National Security Program, who has been a top critic of the House bill.

The issue is that at pretty much any U.S. business, there are people who are communicating on their devices, and they might be communicating with foreigners overseas, and they might be communicating with foreign targets. And so the idea is that you could get at those foreign target’s communications, but by picking up international communications that are transmitted through the equipment located in all of these businesses,” she said.

“What you’re going to see in these establishments is just massive amounts of wholly domestic communications that we’re giving​ the NSA access to. And then the NSA is kind of on the honor system to not retain any of those.”

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Beyond the provision dealing with electronic communications service providers, the bill also expands 702’s use into the immigration space, allowing it for vetting noncitizens as they enter the country, whether for tourism or even as they immigrate.

Senate passes bill renewing key FISA surveillance power moments after it expires (MSNBC)

The vote of 60-34 sends the bill to President Joe Biden, who has championed it. The legislation extends Section 702 of the Foreign Intelligence Surveillance Act, or FISA, for two more years.

The final vote came after the Senate defeated six amendments from progressive and conservative senators who said the spying powers are too broad and demanded protections for Americans’ civil liberties and privacy. The Biden administration and FISA supporters had warned that even a brief lapse could have a detrimental impact on the intelligence-gathering process.

Senators just missed the midnight deadline to reauthorize the FISA Section 702 statute but voted to reauthorize it minutes later. Had any amendments been adopted, the bill would have been sent back to the House, potentially forcing a lengthy lapse of the law.