Biggest change to FISA Section 702 would be the requirement for court approval of queries
(WASHINGTON) – The Center for Democracy & Technology (CDT) applauds calls for court approval and other key reforms in today’s report on Section 702 of the Foreign Intelligence Surveillance Act (FISA 702) by the Privacy and Civil Liberties Oversight Board (PCLOB). The independent, bipartisan board within the executive branch tasked with examining privacy and civil liberties issues related to counterterrorism recommended that reauthorization of Section 702, a warrantless surveillance authority set to expire at the end of this year, should be paired with fundamental reforms to Section 702 authorities.
Most importantly, the PCLOB recommended that accessing any U.S. person queries of communications acquired from FISA 702 surveillance should be prohibited unless authorized by the FISA court. Although FISA 702 surveillance must target foreigners, Americans’ communications are swept in via “incidental collection” and are queried without independent court approval. This has allowed a litany of improper queries, centered on protesters, political donors, lawmakers, a judge, and journalists. PCLOB’s support of court approval is in line with reforms for which CDT and other privacy advocates have long called, and Congress should adopt this critical change as part of any reauthorization.
Jake Laperruque, Deputy Director of CDT’s Security & Surveillance Project, said:
“PCLOB’s call for court approval for U.S. person queries is a game-changer on the most fundamental issue of the FISA 702 debate. The Board’s recommendation—made with full access to classified information and operational activities—is also a resounding rebuke to the intelligence community’s claim that such a requirement would cripple operations and be technically impossible to implement. The simple fact is, court approval for U.S. person queries is the only way to both protect security and guard against surveillance abuse.”
Additionally, the PCLOB agreed with advocates on the need for other reforms, including limiting the scope of who may be targeted under FISA 702, strengthening the role of FISA Court amici, and outlawing “Abouts” collection.
The Board stated it would support Congress requiring probable cause as the standard for court approval for any U.S. person query deigned to retrieve evidence of a crime (including queries designed to retrieve both evidence of a crime and foreign intelligence), and recommended the standard for purely foreign intelligence queries be whether such queries are reasonably-likely to return foreign intelligence information.
Laperruque added:
“A probable cause warrant standard is key to guarding against fishing expeditions and malfeasance. We’re pleased the PCLOB recognized the importance of this regarding all queries related to criminal investigations – we believe this high standard is critical for all queries to protect civil rights and civil liberties, and safeguard Americans from abuse.”
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The Center for Democracy & Technology (CDT) is the leading nonpartisan, nonprofit organization fighting to advance civil rights and civil liberties in the digital age. We shape technology policy, governance, and design with a focus on equity and democratic values. Established in 1994, CDT has been a trusted advocate for digital rights since the earliest days of the internet. The organization is headquartered in Washington, D.C., and has a Europe Office in Brussels, Belgium.