Workers set up surveillance equipment outside the U.S. Capitol in 2021. (Jabin Botsford/The Washington Post)
A key government privacy panel is urging strict new limits on a controversial surveillance tool due to expire later this year — though in a sign of how contentious the issue has become, the panel split 3-2 on the issue, with the two dissenting members of the group calling the recommendations “deeply flawed.”
The 19 recommendations urged by a majority of the panel, as well as the internal disagreement, only underscore the difficulties the FBI and other supporters of the Section 702 program are facing in getting the law reauthorized.
Critics call Section 702 a Constitution-violating, privacy-invading overreaction to the Sept. 11, 2001, terrorist attacks. Supporters call the program a lifesaving and essential part of the government’s electronic security blanket against terrorism and espionage.
Section 702 was last reauthorized in 2018 and is due to expire at the end of the year. The law allows the government to target the digital communications — typically emails and phone calls — of people who are neither U.S. citizens nor living legally in the United States. It is supposed to protect the country by looking for spies, terrorists, hackers and evidence of crimes.
Officials say that the program does not target Americans but does collect “incidental” information about them, and that the government agencies who keep that data are not capable of measuring how much information is gathered about citizens and legal residents of this country. In the past year, the FBI has come under intensifying criticism for misuses of the data, in part because it can be searched without a court order.
While intelligence officials insist Section 702 is not a bulk data collection program, court rulings declassified earlier this year show the FBI misused the system more than 278,000 times just in 2020 and early 2021. Those errors included searches for information about crime victims, people arrested at Black Lives Matters protests and, in one case, 19,000 donors to a congressional candidate. FBI officials say new procedures have been put in place to prevent similar abuses.
But a report Thursday by three out of the five members of the Privacy and Civil Liberties Oversight Board, or PCLOB, calls for additional changes. It says that a renewal of the program should require FBI agents to get approval from the Foreign Intelligence Surveillance Court to review Section 702 data about U.S. citizens and legal residents. A judge from the court would have to agree such a search is “reasonably likely to retrieve” foreign intelligence or evidence of a crime.
Intelligence officials have argued that such a condition, often referred to as a “warrant requirement,” would be so onerous and time-consuming as to make the program much less effective.
The White House National Security Council issued a statement that said the proposal was “operationally unworkable and would blind us to information already in our holdings that, often, must be acted upon in time-sensitive ways in order to prevent lethal plotting on U.S. soil, the recruitment of spies by hostile actors, the hacking of U.S. companies, and more.”
If enacted, that recommendation would cause “detrimental effects to U.S. national security,” the statement said.
Current and former intelligence officials often refer to Section 702 as a “crown jewel” in the gathering of signals intelligence, critical to tracking spying by foreign governments and hackers’ activities in cyberspace, and to seeing how American people and companies are targeted by such groups.
U.S. officials say the program’s usefulness has grown over the years, and it now accounts for nearly 60 percent of the items in the president’s daily intelligence briefing.
A different advisory group, the President’s Intelligence Advisory Board, recommended earlier this year that Congress tighten the rules on Section 702 but not impose a warrant requirement, which that panel viewed as too onerous.
The new report by three members of the privacy board said the court approval requirement is necessary to keep the program alive.
“Section 702 remains highly valuable to protect national security,” the report says, but it also “creates serious privacy and civil liberties risks.”
The report calls for “individualized and particularized judicial review” for any searches using query terms related to U.S. citizens and lawful residents. At the same time, however, the recommendation said there should be two exceptions to that requirement — one for fast-moving emergencies, and another for instances in which the government is seeking data about a potential American victim and has the victim’s consent to conduct such a search.
The politics of Section 702 — and surveillance in general — are not clear-cut. Moderates in each party often support such programs, while the far left and the far right often oppose them. In the House, a number of members of Congress closely aligned with former president Donald Trump have vowed to end or significantly scale back Section 702; they have urged more-liberal Democrats to join them in those efforts.
The three members of the PCLOB who urge court approval for searches of U.S. citizens and lawful residents are Democrats, while the two who oppose that recommendation are Republicans. The three-member majority of the panel also made 18 other recommendations to alter Section 702, but the call for court approval of searches is the most significant.
In a separate statement, the two dissenting members said the failure to reauthorize the program “would cause grave damage to the security of our country, and quite likely, lead to the loss of American lives.” Instead of creating a warrant requirement, they argued, the government should “reform the structure and culture of the FBI.”
With more advocates and political figures weighing in with suggested alterations to the program, it appears increasingly likely that if Section 702 is reauthorized, it will be with significant changes. But in an era of often paralyzing brinkmanship on Capitol Hill, it’s unclear how far-reaching any changes to the law might be, or if there is enough consensus among the moderate wings of each party to muster support to pass anything.
