The Federal Government’s Privacy Watchdog Concedes: 702 Must Change

The Privacy and Civil Liberties Oversight Board (PCLOB) has released its much-anticipated report on Section 702, a legal authority that allows the government to collect a massive amount of digital communications around the world and in the U.S. The PCLOB agreed with EFF and organizations across the political spectrum that the program requires significant reforms if it is to be renewed before its December 31, 2023 expiration. Of course, EFF believes that Congress should go further–including letting the program expire–in order to restore the privacy being denied to anyone whose communications cross international boundaries. 

PCLOB is an organization within the federal government appointed to monitor the impact of national security and law enforcement programs and techniques on civil liberties and privacy. Despite this mandate, the board has a history of tipping the scales in favor of the privacy annihilating status quo. This history is exactly why the recommendations in their new report are such a big deal: the report says Congress should require individualized authorization from the Foreign Intelligence Surveillance Court (FISC) for any searches of 702 databases for U.S. persons. Oversight, even by the secretive FISC, would be a departure from the current system, in which the Federal Bureau of Investigation can, without warrant or oversight, search for communications to or from anyone of the millions of people in the United States whose communications have been  vacuumed up by the mass surveillance program.

The report also recommends a permanent end to the legal authority that allows “abouts” collection, a search that allows the government to look at digital communications between two “non-targets”–people who are not the subject of the investigation–as long as they are talking “about” a specific individual.  The Intelligence Community voluntarily ceased this collection after increasing skepticism about its legality from the FISC. We agree with the PCLOB that it’s time to put the final nail in the coffin of this unconstitutional mass collection. 

Section 702 allows the National Security Agency to collect communications from all over the world. Although the authority supposedly prohibits targeting people on U.S. soil, people in the United States communicate with people overseas all the time and routinely have their communications collected and stored under this program. This results in a huge pool of what the government calls “incidentally” collected communications from Americans which the FBI and other federal law enforcement organizations eagerly exploit by searching without a warrant. These unconstitutional “backdoor” searches have happened millions of times and have continued despite a number of attempts by courts and Congress to rein in the illegal practice.

Along with over a dozen organizations, including ACLU, Center for Democracy in Technology, Demand Progress, Freedom of the Press Foundation, Project on Government Oversight, Brennan Center, EFF lent its voice to the request that the following reforms be the bare minimum for precondition for any re-authorization of Section 702: 

• Requiring the government to obtain a warrant before searching the content of Americans’ communications collected under intelligence authorities;
  
• Establishing legislative safeguards for surveillance affecting Americans that is conducted overseas under Executive Order 12333–an authority that raises many of the same concerns as Section 702, as previously noted by PCLOB members;
  
• Closing the data broker loophole, through which intelligence and law enforcement agencies purchase Americans’ sensitive location, internet, and other data without any legal process or accountability;
  
• Bolstering judicial review in FISA-related proceedings, including by shoring up the government’s obligation to give notice when information derived from FISA is used against a person accused of a crime; and
  
• Codifying reasonable limits on the scope of intelligence surveillance.
  

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