Ten years after Edward Snowden sparked a debate over domestic (and international) spying by the U.S. government and its allies, arguments continue and so does the snooping. This year, one key component of the surveillance state—Section 702 of the Foreign Intelligence Surveillance Act—is up for congressional reauthorization. Now, the executive branch's own civil liberties watchdog says that, while Section 702 plays an important role, it's also dangerous to our freedom and needs reform.
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To hear America's professional spooks, Section 702 is made up of equal servings of mom, apple pie, and a trench coat.
"In 2008, Congress enacted Section 702 of the Foreign Intelligence Surveillance Act (FISA), a critical intelligence collection authority that enables the Intelligence Community (IC) to collect, analyze, and appropriately share foreign intelligence information about national security threats," insists the Office of the Director of National Intelligence. "Section 702 only permits the targeting of non-United States persons who are reasonably believed to be located outside the United States. United States persons and anyone in the United States may not be targeted under Section 702."
The Privacy and Civil Liberties Oversight Board (PCLOB), established in 2007 in an effort to limit the excesses of the burgeoning post-9/11domestic intelligence apparatus, sees things a little differently.
"The Board finds that Section 702 poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries" in which multiple query terms are run as part of a single action, according to the PCLOB's Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, published September 28 and following up on a 2014 report on the same topic. "Significant privacy and civil liberties risks also include the scope of permissible targeting, NSA's new approach to upstream collection, a new sensitive collection technique that presented novel and significant legal issues approved by the FISC in 2022, how data is initially ingested into government repositories, incidental collection, and inadvertent collection."
The report points out that the definition of "foreign intelligence information" is very broad and that 246,073 non-U.S. persons were targeted for surveillance in 2022, up 276 percent from 2013. While Section 702 surveillance isn't "bulk" surveillance of the sort that hoovers up mass quantities of information, it "lacks individualized and particularized judicial review of targeting decisions" with the result that "targeting can be overbroad or unjustified."
Foreign Intelligence Isn't Always So Foreign
The result of broad and somewhat indiscriminate data collection is that "the government acquires a substantial amount of U.S. persons' communications as well." This interception of Americans' communications "should not be understood as occurring infrequently or as an inconsequential part of the Section 702 program." In particular, "FBI's querying procedures and practices pose the most significant threats to Americans' privacy."
Why is the FBI of such particular concern? Because the FBI focuses on domestic law enforcement and "one of the most serious risks to individual civil liberties associated with the incidental collection of U.S. person information is that this classified information collected for intelligence purposes could be used in a criminal prosecution," notes the board. The government is required to disclose when it uses Section 702 intelligence in criminal cases, but it has done so only nine times—which is not the same as saying that it rarely uses such information. "In multiple cases, rather than providing notice to criminal defendants of Section 702-derived information, the government has instead sought to develop evidence through other sources" so prosecutors can avoid admitting they used foreign intelligence tools.
The Real Targets Are Often Americans
Often, federal agents seem to explicitly use Section 702 to bypass safeguards. "The large amounts of incidental collection may include communications between attorneys and their clients," adds the report. It also notes that "the government has identified a significant number of noncompliant queries where government personnel have conducted queries related to instances of civil unrest and protests."
How often does this happen?
"In the Annual Statistical Transparency Report for calendar year 2021, FBI reported that it ran 3.4 million [later revised downward to 2.97 million] U.S. person queries of Section 702-acquired information in all its systems," according to a report footnote.
The Debate Over Reform
The divided five-member PCLOB recommends multiple reforms, including a specific prohibition on "about" interceptions that are neither to or from targets, but merely mention them, and a requirement for Foreign Intelligence Surveillance Court approval of U.S. person query terms. Even so, the report concludes "the United States is safer with the Section 702 program than without it." Despite that call for reauthorization, two of the five board members voted against the report for being excessively critical and demanded that it not be attributed to them.
Civil liberties groups quickly noted the report's contribution to the debate over Section 702.
"Congress has the power to safeguard the constitutional rights of Americans by fundamentally reforming this invasive and unconstitutional mass surveillance program," Kia Hamadanchy, senior policy counsel at the ACLU, commented in an emailed statement. "As the Board rightly points out, requiring the government to obtain individualized judicial approval is critical to ensuring that Section 702 cannot be used by the FBI, NSA, and CIA to quietly circumvent Americans' constitutional rights."
"The PCLOB report is damning, in terms of both the frequency with which government agencies conduct warrantless searches of data collected under Section 702 and the purposes for which those searches are conducted, yet the report's recommendations don't go nearly far enough to ensure Americans' privacy from this overreaching, oft-abused digital dragnet," agreed Electronic Frontier Foundation Senior Policy Analyst Matthew Guariglia.
Damning it may be, but the White House National Security Council has already rejected part of the report's call for modest reform as "operationally unworkable."
Given the current debate over Section 702, it's easy to forget about other legal authorizations for domestic surveillance. These include other parts of FISA, Executive Order 12333, and national security letters, which often are subject to looser safeguards. But, the PLCOB adds, "Section 702 enables the government to target a broader array of persons," including those who aren't suspected of violating American laws or acting against the United States, "which also increases the risks of privacy and civil liberties harms."
Section 702 expires in December with its fate, and that of proposed reforms, in the hands of Congress.