OPINION:
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.
Because warrantless searches pose significant threats to Americans’ privacy and civil liberties, the board recommends that Congress require the government to obtain a court order before reviewing the communications of Americans returned by these searches.
Section 702 authorizes the government to target foreigners outside the United States to collect their communications for foreign intelligence purposes. The surveillance program also “incidentally” collects the communications of Americans if they are in touch with a foreign target. Currently, the government is permitted to search 702 databases for information about specific Americans through “U.S. person queries.”
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.
Since 2020, the FBI has searched for Americans in Section 702 data about 5 million times without any individualized court oversight. Why is the FBI running millions of Americans through a foreign intelligence database? Outside “victim” queries, the FBI has struggled to demonstrate the necessity of obtaining these Americans’ data in criminal investigations.
After a thorough review, including classified information, it is apparent to us that these queries do not produce nearly the significant intelligence value that justifies the Section 702 program overall.
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.
The FBI has failed to get this right for more than a decade. The bureau’s persistent noncompliance over the years dramatically illustrates the need for independent, impartial and external review. These compliance errors may also undermine the public’s trust in the FBI, raising real questions about its ability to police itself.
We cannot agree with our GOP board colleagues who would have us continue to trust the FBI to solve these problems without court oversight.
We also reject our colleagues’ 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.
A fundamental tenet of the American legal system is that government officials must establish an appropriate predicate to a judge before searching Americans’ belongings or information. We do not permit the police to break into a home without such court approval, and we should not permit government personnel to access our communications through U.S. person queries without court review. This is Civics 101.
Our recommendation would require court approval only when a U.S. person query leads to a “hit” in 702 data — permitting the government to rule out leads without the need for judicial review or resources. We also recommend exceptions for emergencies and for situations where the government obtains express consent.
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.
Judicial approval of U.S. person queries will ensure that these queries and the Section 702 program overall rest on a sound legal and constitutional footing. As one of us, Chair Sharon Bradford Franklin, wrote in her statement to our report, Americans “possess Fourth Amendment rights, and the current query rules that require only internal agency approval for U.S. person queries are insufficient.” Further, the “absence of any individualized judicial review of U.S. person query terms thus threatens the overall reasonableness of the program under the Fourth Amendment’s totality of the circumstances test.”
Requiring court orders for U.S. person queries would reduce compliance errors, promote accountability, and build public trust in a program that otherwise has great foreign intelligence value. Congress should not reauthorize the Section 702 program without this reform.
• Sharon Bradford Franklin is chair of the Privacy and Civil Liberties Oversight Board. Edward W. Felten and Travis LeBlanc are board members.
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