Watchdog urges extending surveillance law with limits
Intended to target potential foreign threats
WASHINGTON — An independent watchdog agency that investigates the nation’s security programs unanimously urged Congress in a report made public Thursday to reauthorize an expiring and much-debated law that allows warrantless surveillance of targeted foreigners even when they are communicating with or about Americans.
At the same time, the fivemember Privacy and Civil Liberties Oversight Board agreed that the program poses a threat to Americans’ privacy and suggested imposing new limits on it. But its members split along party lines about a proposed remedy: requiring that a court be involved before analysts can deliberately look at Americans’ intercepted communications.
The partisan disagreement over how to place checks on the program may complicate the impact in Congress of the report on the law, known as Section 702, which must be reauthorized by the House and the Senate this year if it is to remain in effect.
The board is an independent agency within the executive branch that Congress established several years after the terrorist attacks of Sept. 11, 2001, amid concerns over how to balance national security against civil liberties as the nation intensified its efforts to gather intelligence about terrorist threats. Three of its current members were chosen by Democrats and two by Republicans.
Section 702 allows the government to collect — from US firms like Google and without a warrant — the communications of targeted foreigners. That authority, which grew out of the Bush administration’s post-Sept. 11 warrantless surveillance program, will expire at the end of December unless lawmakers extend the law.
Congress previously reauthorized the law in 2012 and 2018. But it faces an uncertain fate this cycle. A faction of hard-right Republicans are opposing it in alignment with former president Donald Trump’s hostility to the “deep state,” joining forces with liberal-leaning civil liberties advocates who have long had concerns about how Section 702 allows the government to scoop up some communications of Americans without a warrant and make it available to intelligence and law enforcement officials.
All five members of the board concurred that it would make the United States less safe to let the program die, and all five called for privacy-minded reforms to it without agreeing on what those reforms should be.
“Section 702 is valuable in supporting U.S. government efforts to counter foreign threats from actors outside the United States, such as terrorism, weapons proliferation and cyberthreats,” the Democratic members in the majority concluded in the main report, which was sent to lawmakers Wednesday.
“At the same time, the risk of overbroad government collection of communications under Section 702 and subsequent government use of that information is very real and can cause harm, at varying degrees,” they said. They added that “these privacy and civil liberties risks can be reduced while preserving the program’s value in protecting Americans’ security.”
The two Republicans in the minority expressed similar views but voted against the majority’s report in its entirety and filed their own statement — essentially a rival report.
The government may collect emails and other data under Section 702 to gather intelligence about foreign governments, terrorism, and the proliferation of weapons of mass destruction. It places the raw intercepts in repositories where intelligence analysts — including at the CIA, FBI, and the National Security Agency — can query them in search of information relevant to their work.
Much of the controversy around the program has centered on the ability of the intelligence analysts to use Americans’ identifiers — like names, phone numbers, or email addresses — as query terms, since that sometimes results in reading private messages sent to or from Americans gathered without warrants.
FBI officials have repeatedly violated standards about querying for Americans’ information. The FBI instituted further limits in 2021 and 2022.
The board’s Democratic majority recommended that when intelligence analysts query for Americans’ information and get hits, the government should have to get the approval of the Foreign Intelligence Surveillance Court before reading the results. To win approval, the query would have to be deemed “reasonably likely” to retrieve foreign intelligence or evidence of a crime.
Two members of the Democratic majority fully backed that idea: Edward W. Felten and Travis LeBlanc. A third — the chair, Sharon Bradford Franklin — wrote separately that she wanted a higher “probable cause” standard for court approval, essentially matching the standard to obtain a wiretap order.
The two Republicans, Beth A. Williams and Richard E. DiZinno, also called for pre-access reviews when it comes to hits on queries for Americans. But they portrayed the idea of stopping an investigation to seek court review as deeply unwise. They argued that supervisors within agencies could handle such reviews.
That puts Biden administration officials — who have opposed proposals to require individualized court review of queries involving Americans’ identifiers, arguing that it would cause delays and overwhelm the system — closer to the Republicans on the board than to the Democrats.