Divided Privacy Oversight Board Urges New Limits on Key US Government Surveillance Tool

A Key US Government Surveillance Tool Should Face New Limits, a Divided Privacy Oversight Board Says

Introduction

In a highly contentious report, the Privacy and Civil Liberties Oversight Board has recommended that the FBI and other agencies be required to obtain court approval before reviewing the communications of U.S. citizens collected through the secretive foreign surveillance program known as Section 702 of the Foreign Intelligence Surveillance Act. This recommendation, made by a three-member Democratic majority of the board, is in direct opposition to the Biden administration’s stance that such a requirement could hinder terrorism and espionage investigations. The report comes at a time when the reauthorization of Section 702 is facing significant opposition in Congress, and concerns have been raised about misuse of the program by FBI employees.

The Debate Surrounding Section 702

Section 702 allows spy agencies to collect emails and other communications from foreigners located abroad, even when those foreigners are in contact with individuals in the United States. The program has been touted as essential for disrupting foreign terror attacks, espionage operations, and cyberattacks against critical infrastructure. However, both Democrats and Republicans in Congress have voiced their concerns about how the FBI uses foreign surveillance data to investigate Americans, and many have indicated that they will not vote to renew Section 702 without major changes.

One of the central points of contention is the use of the foreign intelligence database to search for information about individuals, businesses, or phone numbers located in the U.S. Queries are currently permissible if there is reason to believe they will retrieve foreign intelligence information. The FBI is also allowed to search the database if it believes it will find evidence of a crime, although a court order is required to review the results of those queries. Court opinions that have been recently unsealed have revealed violations by the FBI in how these queries have been conducted, including improper searches related to the U.S. Capitol riot and protests following the killing of George Floyd. The FBI has said that significant safeguards have been implemented since these violations came to light.

The Privacy Oversight Board’s Recommendations

The Privacy and Civil Liberties Oversight Board, in its divided report, recommended that executive branch agencies, with limited exceptions, should obtain permission from the secretive Foreign Intelligence Surveillance Court before reading the results of their database queries on U.S. citizens. The majority of the board argued that the scale of U.S. person queries, the number of compliance issues, and the failure of current law and procedures to adequately protect U.S. persons necessitate a new approach.

However, the two Republican members of the board, along with the White House, objected to this recommendation, stating that it would be unduly burdensome and could jeopardize national security. They argued that seeking court permission to read through intelligence that has already been lawfully collected would slow down national security investigations that require fast action.

Philosophical and Ethical Considerations

The debate surrounding government surveillance and the balance between national security and individual privacy is not a new one. Since the September 11, 2001 attacks, there has been an ongoing tension between the need for robust surveillance capabilities to protect against threats and the desire to protect civil liberties and privacy rights.

The position taken by the majority of the Privacy and Civil Liberties Oversight Board reflects a belief that additional safeguards are necessary to protect the privacy and civil liberties of U.S. citizens. They argue that the current system of querying the foreign intelligence database has resulted in compliance issues and potential violations of rights. On the other hand, those who oppose the recommendation believe that the current system strikes the right balance between national security and privacy concerns and that introducing additional requirements could hinder investigations and put lives at risk.

Editorial and Advice

The recommendations put forward by the Privacy and Civil Liberties Oversight Board highlight the need for a careful and thoughtful debate about the limits of government surveillance. It is essential to consider not only the immediate concerns of national security but also the long-term implications for civil liberties and privacy rights.

While some may argue that any additional requirements for court approval could impede investigations, it is crucial to remember that the privacy and civil liberties of U.S. citizens are foundational to democratic values. Striking the right balance between security and individual rights is a challenge, but it is one that must be addressed in a transparent and accountable manner.

In the coming months, as Section 702 faces reauthorization, Congress must carefully consider the recommendations of the Privacy and Civil Liberties Oversight Board, as well as the concerns raised by civil liberties advocates and the FBI. It is crucial that any changes to the program’s renewal address the compliance issues and potential violations while still allowing for effective national security measures.

Ultimately, the goal should be to find a solution that upholds the principles of privacy and civil liberties while also ensuring the safety and security of the United States. This may require compromises and creative solutions that strike a delicate balance between competing interests. By engaging in open and informed discourse, policymakers can arrive at a solution that reflects the values and aspirations of the American people.