ACLU Applauds Privacy and Civil Liberties Oversight Board Report and Urges Congress to Fundamentally Reform Section 702

The Privacy and Civil Liberties Oversight Board Called for Major Changes to Law the Government Uses to Warrantlessly Surveil Americans’ International Communications

September 28, 2023 10:25 am

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WASHINGTON — A key government oversight board released a report today outlining the essential, far-reaching reforms lawmakers must make to Section 702 of the Foreign Intelligence Surveillance Act to protect Americans’ privacy as Congress weighs reauthorizing the law at the end of the year.

The report, endorsed by a majority of the Privacy and Civil Liberties Oversight Board (PCLOB), found little justification for the close to 5 million U.S. person queries — often known as “backdoor searches” — conducted by the FBI from 2019 to 2022. It additionally revealed that from November 2020 to December 2021, the FBI conducted tens of thousands non-compliant queries related to domestic civil unrest and protests. The Board recommended a number of reforms including:

  • Requiring the government to seek individualized judicial approval before searching Section 702 data for the private communications of Americans.
  • Narrowing the scope of surveillance that may be conducted under Section 702 by limiting it to twelve specific objectives and by banning the National Security Agency’s ability to restart “abouts” collection without congressional approval.
  • Strengthening oversight and transparency with respect to the secret Foreign Intelligence Surveillance Court.

Sharon Bradford Franklin, the chair of the PCLOB, further recommended that Congress impose a probable cause standard before the FBI can access the result of a U.S. person query conducted at least in part to seek evidence of a crime. As she explains, adopting this standard is the only way to ensure that these searches of Americans’ private communications fully comply with the requirements of the Fourth Amendment. A majority of the board further indicated that they would support a Congressional determination requiring a probable cause standard for any U.S. person query designed to retrieve evidence of crime.

The following is a statement from Kia Hamadanchy, senior policy counsel at the ACLU:

“Congress has the power to safeguard the constitutional rights of Americans by fundamentally reforming this invasive and unconstitutional mass surveillance program. 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.

Congress must adopt significant reforms to Section 702 and other authorities, including by imposing a warrant requirement for agents and analysts to search Section 702 data for the private communications of Americans — whether that’s for evidence of a crime or foreign intelligence purposes.”

The Board’s report is available online here.

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