For Immediate Release
September 28, 2023
This morning the Privacy and Civil Liberties Oversight Board (PCLOB), an independent agency within the executive branch, issued a report on Section 702 of the Foreign Intelligence Surveillance Act. The report recommends that Congress enact a wide range of reforms to Section 702, including a requirement that federal agents obtain approval from a judge to access data collected under Section 702 for an American’s communications. Three of the five Board members stated that they would support a “probable cause” standard for both criminal and mixed criminal/foreign intelligence investigations. The Chair of the Board issued a separate statement explaining the necessity for a probable cause standard in these cases.
Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice at NYU, had the following comment:
“The board’s report gives the lie to the government’s objections to judicial approval. After looking at all the evidence, both public and classified, the board concluded that judicial approval of U.S. person queries is not only workable, it’s critical to safeguarding Americans’ constitutional rights and ending the long string of abuses documented in FISA court opinions. Moreover, the Chair’s statement makes an ironclad case for requiring a probable-cause order for U.S. person queries. Congress should take note and refuse to reauthorize Section 702 without robust reforms to protect Americans’ privacy.”
Background
Section 702 allows the federal government to conduct warrantless surveillance of foreign intelligence targets overseas, but the surveillance sweeps in large volumes of Americans’ communications, including their phone calls and text messages. Federal agencies routinely search this data without a warrant, and the FBI has engaged in widespread violations of the rules that apply to such searches. The Board’s report reveals that there were “tens of thousands” of violations “related to civil unrest” – in other words, searches of protesters’ communications – between November 2020 and December 2021 alone. Congress is currently debating whether to reauthorize Section 702, which expires at the end of this year.
The report released today was endorsed by three of the board’s five members. Chief among its recommendations is that Congress should require the government to obtain individualized judicial approval before accessing Americans’ communications collected under Section 702. The report also recommends strengthening the role of amici curiae who participate in FISA court proceedings, identifying with more specificity the legitimate purposes for which surveillance can be undertaken, and making Section 702 surveillance more transparent.
Two members of the Board, both former government officials who have a record of supporting broad surveillance powers and opposing significant civil liberties reforms, dissented from the report’s recommendations.
Related Resources
- Fixing FISA II: Testimony before the House Judiciary Subcommittee on Crime and Federal Government Surveillance, by Elizabeth Goitein (July 14, 2023)
- The Year of Section 702 Reform, Part III: Why Congress Should Not Exempt Warrantless “Foreign Intelligence” Queries (Just Security, July 27, 2023)
- An Opportunity to Stop Warrantless Spying on Americans (February 14, 223)
