Big Tech Squares Off Against US Spies

A trade organization representing some of the world’s largest information technology companies—Google, Amazon, IBM, and Microsoft among them—say its members are voicing strong opposition to ongoing efforts by the Biden administration to dramatically expand a key US government surveillance authority.

The US Senate is poised to vote Thursday on legislation that would extend a global wiretap program authorized under the Foreign Intelligence Surveillance Act (FISA). Passed by the House of Representatives last week, a provision contained in the bill—known as the Reforming Intelligence and Securing America Act (RISAA)—threatens to significantly expand the scope of the spy program, helping the government to compel the assistance of whole new categories of businesses.

Legal experts argue the provision could enable the government to conscript virtually anyone with access to facilities or equipment housing communications data, forcing “delivery personnel, cleaning contractors, and utilities providers,” among others, to assist US spies in acquiring access to Americans’ emails, phone calls, and text messages—so long as one side of the communication is foreign.

A global tech trade association, the Information Technology Industry Council (ITI), is now urging Congress to avoid passing RISAA due to a particular provision “dramatically expanding the scope of entities and individuals covered” by the program, known as Section 702. Changes to the 702 program included in the House bill, ITI says, would only serve to send customers in the US and abroad fleeing to foreign competitors, convincing many that technology in the US is far too exposed to government surveillance.

The group’s membership includes several major equipment manufacturers, such as Ericsson, Nokia, and Broadcom, as well as large cloud storage providers like Google, Microsoft, IBM, and Salesforce. “ITI’s position is that the provision should be removed,” the group’s communications director, Janae Washington, tells WIRED. “Our positions are based on member consensus.”

The individual ITI member companies WIRED contacted for their comment on the legislation did not immediately respond or declined to comment.

The provision under fire stems from a ruling handed down by the US government’s secret surveillance court—the FISA court—that oversees the 702 program. The program is designed to target the communications of foreigners, including calls and emails to and from US citizens. To this aim, the federal statute specifies that the government may compel the assistance of businesses that fall into the category of what it calls “electronic communications service providers,” or ECSP.

Companies like Google and AT&T have typically fallen into this category as direct providers of the services being wiretapped; however, the US government has also moved in recent years to interpret the term more broadly as part of an effort to expand the roster of entities whose assistance it’s allowed to compel.

The FISA court, in a decision backed by its own review body, pushed back against the expanded definition, telling the government that what constitutes an ECSP remains “open to reconsideration by the branches of government whose competence and constitutional authority extend to statutory revision.”

More concisely: The court reminded the government that only Congress has the power to rewrite the law.