Privacy and national security are equally patriotic. Our agency, the Privacy and Civil Liberties Oversight Board, has a mission to ensure the protection of both.
A critical surveillance law, Section 702 of the Foreign Intelligence Surveillance Act, expires this year. Our board recently released an oversight report examining and providing a comprehensive, authoritative description of the program. We found Section 702 valuable in protecting U.S. national security from foreign threats, but that value wanes as it is used to search for communications of Americans.
The Foreign Intelligence Surveillance Court annually approves the overall rules of Section 702, but it performs no individualized judicial review of either the targeting decisions or of any U.S. person queries. Furthermore, the FBI has repeatedly violated querying rules to run searches on Americans. This includes impermissible searches for members of Congress, those who protested the murder of George Floyd, preachers, participants in an FBI community relations program, victims who reported crimes, and so on.
We also reject our colleagues’ troubling suggestion that requiring judicial review of U.S. person queries would be more invasive. Our recommendation incorporates the same query standard that the government says it is already meeting — it just requires judicial review. Because our recommendation incorporates the same query standard the government uses today, it obliges analysts to document the same facts and justifications for presentation to a neutral judge. The FISA Court may require more documentation and time for its review, but efficiency is no excuse for sacrificing Americans’ privacy, First Amendment, and due process rights.
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