What latest US privacy row says about Washington’s concerns about security threats from China
- Plans to expand the scope of surveillance powers highlight a shift in focus to cybersecurity and the role of states like China, according to one analyst
- A planned vote in Congress on the measures was pulled following a major backlash from human rights and privacy activists
A vote on the bill – which sought to reauthorise a clause in the Foreign Intelligence Surveillance Act (Fisa) expiring on December 31 – has been pulled following a fierce backlash from rights groups and privacy experts over data collection.
As part of this process, earlier this month the House Permanent Select Committee on Intelligence called for a new definition of what it called an “electronic communication service provider” to include “equipment that is being or may be used to transmit or store” communications.
It builds on the existing law – Section 702 of Fisa – that allows the US government to compel communication service providers, such as phone and email providers, to disclose communications of individuals outside the US for foreign intelligence purposes without a warrant.
Faizal Bin Abdul Rahman, a research fellow at the S Rajaratnam School of International Studies in Singapore, said the bill showed that Washington now viewed its threats as having evolved from primarily “physical terror plots to a broad range of threats”.
These new threats, he said, included critical and emerging technologies such as infrastructure and communications – areas that are vulnerable to cyberattacks.
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“The reform is significant as it marks the shift in US national security focus from Islamist terrorism to a new cold war focus where the primary threat comes from another major power, specifically China,” he said.
Last month, the House Permanent Select Committee on Intelligence called Section 702 as “one of the most effective tools used by the Intelligence Community to protect our nation”, adding that many US allies also rely on it.
“We will go ‘blind’ to many critical national security risks that threaten our homeland and our military interests abroad,” it said.
It also included a quote by Matt Olsen, assistant attorney general for national security, in a footnote, where he said: “At this moment, when China is ramping up its aggressive efforts to spy on Americans, it would be a grievous mistake to blind ourselves to that threat by allowing this critical authority to expire.”
Faizal said there could be a risk of “surveillance creep” with the new bill, adding: “Fear of this risk is higher today after incidents involving spyware and state-led surveillance across the world.”
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He added that countries may need to examine whether the global reach of a reformed Section 702 could affect their citizens’ data and privacy.
He also said the bill expanded the range of companies dealing with data and communications that would have to cooperate with the US government which suggests a need for “intel tools to probe threat actors with vast and sophisticated digital capabilities”.
He added: “Today, such threat actors are associated with strategic rivals such as China rather than ideology-based terrorist groups which usually have less sophisticated digital tools.”
He suggested that the bill may also enable enhanced vetting of foreigners travelling to the US. “This seems to happen amid heightened concerns of espionage and foreign interference in American politics. While Russia was the alleged hostile actor in the 2016 presidential election, it appears the US sees China as the biggest threat now.”
The future of the proposals to expand US government surveillance powers is unclear for now, and Congress is now expected to vote on the National Defence Authorisation Act this week – a move that would temporarily extend the existing provisions until April.
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US intelligence agencies have repeatedly flagged China as a major threat, describing it as the “broadest, most active, and persistent cyber-espionage threat to US Government and private sector networks” in February’s annual threat assessment.
Meanwhile, privacy and civil liberties groups have warned that, if passed, the new legislation could have serious implications.
The Brennan Centre for Justice at the New York University school of law warned in a report that it “would vastly expand the universe of entities inside the US that must assist the government in conducting Section 702 surveillance”.
“Hotels, libraries, coffee shops and other businesses that provide wifi could be compelled to serve as surrogate spies, structuring their systems so that they can give the government access to entire communications streams”.
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Caitlin Chin-Rothmann, a fellow at the Centre for Strategic & International Studies, wrote in a report published last week: “Because Section 702 authorises the National Security Agency to target a broad range of internet and cellular communications by non-US individuals, it also sweeps in messages from Americans who correspond with them.”
Earlier this year, the White House urged Congress to reauthorise Section 702, describing it as “one of the nation’s most critical intelligence tools”.
“Thanks to intelligence obtained under this authority, the United States has been able to understand and respond to threats posed by the People’s Republic of China, rally the world against Russian atrocities in Ukraine,” National Security Adviser Jake Sullivan and principal deputy national security adviser Jon Finer said in July.
