Some degree of government surveillance and secrecy is necessary to protect against national security threats. However, overbroad government power to conduct mass surveillance with minimal transparency threatens Constitutional freedoms and inhibits meaningful public debate. Here are four – but not the only – needed national security surveillance reforms that the Administration and Congress should tackle now.
1. Outlaw Bulk Collection of Americans’ Private Records
The NSA collects and stores phone records – in bulk and on an ongoing basis – on tens of millions of Americans who are not connected to a criminal or national security investigation. This program was established under Section 215 of the PATRIOT Act. The Department of Justice argues that Section 215 gives the government the authority to force businesses to turn over any large data sets that show relationships among people. This includes not just phone records, but other sensitive data – such as Internet activity, cell phone location information, tax records, financial information, and credit card records. Many Members of Congress, government oversight bodies, and civil society groups have rejected such expansive surveillance power and called for more targeted surveillance to meet security needs. Section 215 of the PATRIOT Act must be reformed to restrict the government from bulk collection of private records on Americans with no connection to criminal or national security investigations, while still allowing for narrowly targeted surveillance against true threats.
2. Require Greater Transparency and Accountability for Surveillance
Public understanding of how the government uses its surveillance authority is a critical safeguard against abuse, but the government’s national security surveillance activities have been shrouded in unnecessary secrecy. The surveillance court – called the FISC – is not required to publicly report summaries of its rulings, leading to secret interpretations of law. Extensive gag orders sharply restrict what U.S. Internet companies can disclose about the extent of surveillance on their users, causing damage to the companies’ global reputations and lost business opportunities. The government reports limited information on its own activities inhibiting public awareness and debate on the issue. The FISC should publicly disclose summaries of its significant legal interpretations, the government should issue more detailed public reporting on its surveillance activities, and the government should permit companies to disclose more details on how surveillance affects their users.
3. Close the “Backdoor Search Loophole” to Monitor Americans Without Court Approval
The government can obtain the content of communications of people outside the U.S. – such as email messages or phone conversations – under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The government is explicitly prohibited from using Section 702 to target anyone in the U.S., or U.S. citizens or lawful residents, for surveillance. However, the NSA is using it to collect vast amounts of Internet traffic – 250 million Internet communications per year according to a 2011 court estimate. Many Americans’ communications are inadvertently and incidentally swept up in that surveillance, though technically the Americans are not targeted. Once the NSA has collected communications content, the NSA can then search this pool of data for communications of U.S. persons without court approval and share this information with law enforcement. This “backdoor search loophole” should be closed by clarifying Section 702 to bar the government from searching for U.S. persons’ information without a court order authorizing the search.
4. Limit Surveillance To National Security and Related Threats
The Bush Administration persuaded Congress to enact Section 702 to fight terrorism. But the NSA uses Section 702 to collect “foreign intelligence information” that has nothing to do with terrorism. This is because foreign intelligence information is defined extremely broadly to include information that merely “relates” to U.S. foreign affairs. As a result, people abroad complain – properly so – that the statute permits the government to compel U.S. companies to assist with surveillance that targets people abroad just because they are protesting at a U.S. base, engaging in other acts of free speech, or are doing anything that is interesting from a foreign affairs perspective. Instead, Section 702 surveillance should be limited to real national security threats, such as espionage, WMD proliferation, sabotage, or terrorism.