The Canadian House of Commons is currently considering Bill C-26, which would make sweeping amendments to the country’s Telecommunications Act that would expand its Minister of Industry’s power over telecommunication service providers. It’s designed to accomplish a laudable and challenging goal: ensure that government and industry partners efficiently and effectively work together to strengthen Canada’s network security in the face of repeated hacking attacks.

C-26 is not identical to US national security laws. But without adequate safeguards, it could open the door to similar practices and orders.

As researchers and civil society organizations have noted, however, the legislation contains vague and overbroad language that may invite abuse and pressure on ISPs to do the government’s bidding at the expense of Canadian privacy rights. It would vest substantial authority in Canadian executive branch officials to (in the words of C-26’s summary) “direct telecommunications service providers to do anything, or refrain from doing anything, that is necessary to secure the Canadian telecommunications system.” That could include ordering telecommunications companies to install backdoors inside encrypted elements in Canada’s networks. Safeguards to protect privacy and civil rights are few; C-26’s only express limit is that Canadian officials cannot order service providers to intercept private or radio-based telephone communications.

Unfortunately, we in the United States know all too well what can happen when government officials assert broad discretionary power over telecommunications networks. For over 20 years, the U.S. government has deputized internet service providers and systems to surveil Americans and their correspondents, without meaningful judicial oversight. These legal authorities and details of the surveillance have varied, but, in essence, national security law has allowed the U.S. government to vacuum up digital communications so long as the surveillance is directed at foreigners currently located outside the United States and doesn’t intentionally target Americans. Once collected, the FBI can search through this massive database of information by “querying” the communications of specific individuals. In 2021 alone, the FBI conducted up to 3.4 million warrantless searches to find Americans’ communications.

Congress has attempted to add in additional safeguards over the years, to little avail. In 2023, for example, the Federal Bureau of Investigation (FBI) released internal documents used to guide agency personnel on how to search the massive databases of information they collect. Despite reassurances from the intelligence community about its “culture of compliance,” these documents reflect little interest in protecting privacy or civil liberties. At the same time, the NSA and domestic law enforcement authorities have been seeking to undermine the encryption tools and processes on which we all rely to protect our privacy and security.

C-26 is not identical to U.S. national security laws. But without adequate safeguards, it could open the door to similar practices and orders. What is worse, some of those orders could be secret, at the government’s discretion. In the U.S., that kind of secrecy has made it impossible for Americans to challenge mass surveillance in court. We’ve also seen companies presented with gag orders in connection with “national security letters” compelling them to hand over information. C-26 does allow for judicial review of non-secret orders, e.g. an order requiring an ISP to cut off an account-holder or website, if the subject of those orders believes they are unreasonable or ungrounded. But that review may include secret evidence that is kept from applicants and their counsel.

Canadian courts will decide whether a law authorizing secret orders and evidence is consistent with Canada’s legal tradition. But either way, the U.S. experience offers a cautionary tale of what can happen when a government grants itself broad powers to monitor and direct telecommunications networks, absent corresponding protections for human rights. In effect, the U.S. government has created, in the name of national security, a broad exception to the Constitution that allows the government to spy on all Americans and denies them any viable means of challenging that spying. We hope Canadians will refuse to allow their government to do the same in the name of “cybersecurity.”

One week after it was passed by the U.S. House of Representatives, the Senate has passed what Senator Ron Wyden has called, “one of the most dramatic and terrifying expansions of government surveillance authority in history.” President Biden then rushed to sign it into law.  

The perhaps ironically named “Reforming Intelligence and Securing America Act (RISAA)” does everything BUT reform Section 702 of the Foreign Intelligence Surveillance Act (FISA). RISAA not only reauthorizes this mass surveillance program, it greatly expands the government’s authority by allowing it to compel a much larger group of people and providers into assisting with this surveillance. The bill’s only significant “compromise” is a limited, two-year extension of this mass surveillance. But overall, RISAA is a travesty for Americans who deserve basic constitutional rights and privacy whether they are communicating with people and services inside or outside of the US.

Section 702 allows the government to conduct surveillance of foreigners abroad from inside the United States. It operates, in part, through the cooperation of large telecommunications service providers: massive amounts of traffic on the Internet backbone are accessed and those communications on the government’s secret list are copied. And that’s just one part of the massive, expensive program. 

While Section 702 prohibits the NSA and FBI from intentionally targeting Americans with this mass surveillance, these agencies routinely acquire a huge amount of innocent Americans' communications “incidentally.” The government can then conduct backdoor, warrantless searches of these “incidentally collected” communications.

The government cannot even follow the very lenient rules about what it does with the massive amount of information it gathers under Section 702, repeatedly abusing this authority by searching its databases for Americans’ communications. In 2021 alone, the FBI reported conducting up to 3.4 million warrantless searches of Section 702 data using Americans’ identifiers. Given this history of abuse, it is difficult to understand how Congress could decide to expand the government’s power under Section 702 rather than rein it in.

One of RISAA’s most egregious expansions is its large but ill-defined increase of the range of entities that have to turn over information to the NSA and FBI. This provision allegedly “responds” to a 2023 decision by the FISC Court of Review, which rejected the government’s argument that an unknown company was subject to Section 702 for some circumstances. While the New York Times reports that the unknown company from this FISC opinion was a data center, this new provision is written so expansively that it potentially reaches any person or company with “access” to “equipment” on which electronic communications travel or are stored, regardless of whether they are a direct provider. This could potentially include landlords, maintenance people, and many others who routinely have access to your communications on the interconnected internet.

This is to say nothing of RISAA’s other substantial expansions. RISAA changes FISA’s definition of “foreign intelligence” to include “counternarcotics”: this will allow the government to use FISA to collect information relating to not only the “international production, distribution, or financing of illicit synthetic drugs, opioids, cocaine, or other drugs driving overdose deaths,” but also to any of their precursors. While surveillance under FISA has (contrary to what most Americans believe) never been limited exclusively to terrorism and counterespionage, RISAA’s expansion of FISA to ordinary crime is unacceptable.

RISAA also allows the government to use Section 702 to vet immigrants and those seeking asylum. According to a FISC opinion released in 2023, the FISC repeatedly denied government attempts to obtain some version of this authority, before finally approving it for the first time in 2023. By formally lowering Section 702’s protections for immigrants and asylum seekers, RISAA exacerbates the risk that government officials could discriminate against members of these populations on the basis of their sexuality, gender identity, religion, or political beliefs.

Faced with massive pushback from EFF and other civil liberties advocates, some members of Congress, like Senator Ron Wyden, raised the alarm. We were able to squeeze out a couple of small concessions. One was a shorter reauthorization period for Section 702, meaning that the law will be up for review in just two more years. Also, in a letter to Congress, the Department of Justice claimed it would only interpret the new provision to apply to the type of unidentified businesses at issue in the 2023 FISC opinion. But a pinky promise from the current Department of Justice is not enforceable and easily disregarded by a future administration. There is some possible hope here, because Senator Mark Warner promised to return to the provision in a later defense authorization bill, but this whole debacle just demonstrates how Congress gives the NSA and FBI nearly free rein when it comes to protecting Americans – any limitation that actually protects us (and here the FISA Court actually did some protecting) is just swept away.

RISAA’s passage is a shocking reversal—EFF and our allies had worked hard to put together a coalition aimed at enacting a warrant requirement for Americans and some other critical reforms, but the NSA, FBI and their apologists just rolled Congress with scary-sounding (and incorrect) stories that a lapse in the spying was imminent. It was a clear dereliction of Congress’s duty to oversee the intelligence community in order to protect all of the rest of us from its long history of abuse.

After over 20 years of doing it, we know that rolling back any surveillance authority, especially one as deeply entrenched as Section 702, is an uphill fight. But we aren’t going anywhere. We had more Congressional support this time than we’ve had in the past, and we’ll be working to build that over the next two years.

Too many members of Congress (and the Administrations of both parties) don’t see any downside to violating your privacy and your constitutional rights in the name of national security. That needs to change.

This post was drafted by EFF legal intern Alissa Johnson.

EFF signed on to an amicus brief drafted by the National Association of Criminal Defense Lawyers earlier this month petitioning the Oregon Supreme Court to review State v. Simons, a case involving law enforcement surveillance of over a year’s worth of private internet activity. We ask that the Court join the Ninth Circuit in recognizing that people have a reasonable expectation of privacy in their browsing histories, and that checking a box to access public Wi-Fi does not waive Fourth Amendment rights.

Mr. Simons was convicted of downloading child pornography after police warrantlessly captured his browsing history on an A&W restaurant’s public Wi-Fi network, which he accessed from his home across the street. The network was not password-protected but did require users to agree to an acceptable use policy, which noted that while web activity would not be actively monitored under normal circumstances, A&W “may cooperate with legal authorities.” A private consultant hired by the restaurant noticed a device on the network accessing child pornography sites and turned over logs of all of the device’s unencrypted internet activity, both illegal and benign, to law enforcement.

The Court of Appeals asserted that Mr. Simons had no reasonable expectation of privacy in his browsing history on A&W’s free Wi-Fi network. We disagree.

Browsing history reveals some of the most sensitive personal information that exists—the very privacies of life that the Fourth Amendment was designed to protect. It can allow police to uncover political and religious affiliation, medical history, sexual orientation, or immigration status, among other personal details. Internet users know how much of their private information is exposed through browsing data, take steps to protect it, and expect it to remain private.

Courts have also recognized that browsing history offers an extraordinarily detailed picture of someone’s private life. In Riley v. California, the Supreme Court cited browsing history as an example of the deeply private information that can be found on a cell phone. The Ninth Circuit went a step further in holding that people have a reasonable expectation of privacy in their browsing histories.

People’s expectation of privacy in browsing history doesn’t disappear when tapping “I Agree” on a long scroll of Terms of Service to access public Wi-Fi. Private businesses monitoring internet activity to protect their commercial interests does not license the government to sidestep a warrant requirement, or otherwise waive constitutional rights.

The price of participation in public society cannot be the loss of Fourth Amendment rights to be free of unreasonable government infringement on our privacy. As the Supreme Court noted in Carpenter v. United States, “A person does not surrender all Fourth Amendment protection by venturing into the public sphere.” People cannot negotiate the terms under which they use public Wi-Fi, and in practicality have no choice but to accept the terms dictated by the network provider.

The Oregon Court of Appeals’ assertion that access to public Wi-Fi is convenient but not necessary for participation in modern life ignores well-documented inequalities in internet access across race and class. Fourth Amendment rights are for everyone, not just those with private residences and a Wi-Fi budget.

Allowing private businesses’ Terms of Service to dictate our constitutional rights threatens to make a “crazy quilt” of the Fourth Amendment, as the U.S. Supreme Court pointed out in Smith v. Maryland. Pinning constitutional protection to the contractual provisions of private parties is absurd and impracticable. Almost all of us rely on Wi-Fi outside of our homes, and that access should be protected against government surveillance.

We hope that the Oregon Supreme Court accepts Mr. Simons’ petition for review to address the important constitutional questions at stake in this case.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is one of the most insidious and secretive mass surveillance authorities still in operation today. The Security and Freedom Enhancement (SAFE) Act would make some much-needed and long fought-for reforms, but it also does not go nearly far enough to rein in a surveillance law that the federal government has abused time and time again.

You can read the full text of the bill here.

While Section 702 was first sold as a tool necessary to stop foreign terrorists, it has since become clear that the government uses the communications it collects under this law as a domestic intelligence source. The program was intended to collect communications of people outside of the United States, but because we live in an increasingly globalized world, the government retains a massive trove of communications between people overseas on U.S. persons. Now, it’s this US side of digital conversations that are being routinely sifted through by domestic law enforcement agencies—all without a warrant.

The SAFE Act, like other reform bills introduced this Congress, attempts to roll back some of this warrantless surveillance. Despite its glaring flaws and omissions, in a Congress as dysfunctional as this one it might be the bill that best privacy-conscious people and organizations can hope for. For instance, it does not do as much as the Government Surveillance Reform Act, which EFF supported in November 2023. But imposing meaningful checks on the Intelligence Community (IC) is an urgent priority, especially because the Intelligence Community has been trying to sneak a "clean" reauthorization of Section 702 into government funding bills, and has even sought to have the renewal happen in secret in the hopes of keeping its favorite mass surveillance law intact. The administration is also reportedly planning to seek another year-long extension of the law without any congressional action. All the while, those advocating for renewing Section 702 have toyed with as many talking points as they can—from cybercrime or human trafficking to drug smuggling, terrorism, oreven solidarity activism in the United States—to see what issue would scare people sufficiently enough to allow for a clean reauthorization of mass surveillance.

So let’s break down the SAFE Act: what’s good, what’s bad, and what aspects of it might actually cause more harm in the future. 

What’s Good about the SAFE Act

The SAFE Act would do at least two things that reform advocates have pressured Congress to include in any proposed bill to reauthorize Section 702. This speaks to the growing consensus that some reforms are absolutely necessary if this power is to remain operational.

The first and most important reform the bill would make is to require the government to obtain a warrant before accessing the content of communications for people in the United States. Currently, relying on Section 702, the government vacuums up communications from all over the world, and a huge number of those intercepted communications are to or from US persons. Those communications sit in a massive database. Both intelligence agencies and law enforcement have conducted millions of queries of this database for US-based communications—all without a warrant—in order to investigate both national security concerns and run-of-the-mill criminal investigations. The SAFE Act would prohibit “warrantless access to the communications and other information of United States persons and persons located in the United States.” While this is the bare minimum a reform bill should do, it’s an important step. It is crucial to note, however, that this does not stop the IC or law enforcement from querying to see if the government has collected communications from specific individuals under Section 702—it merely stops them from reading those communications without a warrant.

The second major reform the SAFE Act provides is to close the “data brooker loophole,” which EFF has been calling attention to for years. As one example, mobile apps often collect user data to sell it to advertisers on the open market. The problem is law enforcement and intelligence agencies increasingly buy this private user data, rather than obtain a warrant for it. This bill would largely prohibit the government from purchasing personal data they would otherwise need a warrant to collect. This provision does include a potentially significant exception for situations where the government cannot exclude Americans’ data from larger “compilations” that include foreigners’ data. This speaks not only to the unfair bifurcation of rights between Americans and everyone else under much of our surveillance law, but also to the risks of allowing any large scale acquisition from data brokers at all. The SAFE Act would require the government to minimize collection, search, and use of any Americans’ data in these compilations, but it remains to be seen how effective these prohibitions will be. 

What’s Missing from the SAFE Act

The SAFE Act is missing a number of important reforms that we’ve called for—and which the Government Surveillance Reform Act would have addressed. These reforms include ensuring that individuals harmed by warrantless surveillance are able to challenge it in court, both in civil lawsuits like those brought by EFF in the past, and in criminal cases where the government may seek to shield its use of Section 702 from defendants. After nearly 14 years of Section 702 and countless court rulings slamming the courthouse door on such legal challenges, it’s well past time to ensure that those harmed by Section 702 surveillance can have the opportunity to challenge it.

New Problems Potentially Created by the SAFE Act

While there may often be good reason to protect the secrecy of FISA proceedings, unofficial disclosures about these proceedings has from the very beginning played an indispensable role in reforming uncontested abuses of surveillance authorities. From the Bush administration’s warrantless wiretapping program through the Snowden disclosures up to the present, when reporting about FISA applications appears on the front page of the New York Times, oversight of the intelligence community would be extremely difficult, if not impossible, without these disclosures.

Unfortunately, the SAFE Act contains at least one truly nasty addition to current law: an entirely new crime that makes it a felony to disclose “the existence of an application” for foreign intelligence surveillance or any of the application’s contents. In addition to explicitly adding to the existing penalties in the Espionage Act—itself highly controversial— this new provision seems aimed at discouraging leaks by increasing the potential sentence to eight years in prison. There is no requirement that prosecutors show that the disclosure harmed national security, nor any consideration of the public interest. Under the present climate, there’s simply no reason to give prosecutors even more tools like this one to punish whistleblowers who are seen as going through improper channels.

EFF always aims to tell it like it is. This bill has some real improvements, but it’s nowhere near the surveillance reform we all deserve. On the other hand, the IC and its allies in Congress continue to have significant leverage to push fake reform bills, so the SAFE Act may well be the best we’re going to get. Either way, we’re not giving up the fight.