“Some of the Majority’s recommendations are sound, and could provide helpful additional protections for privacy and civil liberties,” write Beth Williams and Richard DiZinno in an annex to the report. “Others would cause serious damage to the country and our national security, while negatively impacting the privacy of U.S. persons.”
On Thursday morning, those disagreements exploded into a complete breakdown of the normally low-profile privacy watchdog, with Williams and DiZinno issuing a press statement blasting the report as “contrary to the evidence and unmoored from the law.”
“We voted against releasing this Report on Section 702 of the Foreign Intelligence Surveillance Act — it was approved only 3 to 2,” the press release reads. “Therefore, we did not think it appropriate to legitimize its release with our participation today.”
The 3-2 split marks a sharp break from the board’s last review of the same law, in 2014, when it unanimously approved a baseline of 10 recommendations on better protecting Americans from improper eavesdropping.
Codified into law almost two decades ago amid the global war on terrorism, Section 702 allows the National Security Agency to collect the texts, emails and other digital communications of foreigners located abroad from U.S. tech providers, like Facebook and Google.
But when Americans communicate with targeted foreigners, their messages are swept up into a repository of data collected under the law. Four U.S. intelligence agencies — the NSA, CIA, National Counterterrorism Center and the FBI — can then query that database for information on U.S. citizens without acquiring a warrant.
Critics of the law have long alleged the authority offers a “backdoor” around Americans’ privacy rights. In recent years, a special court overseeing the program has unearthed systematic privacy violations by the FBI, fueling a new, largely bipartisan push to overhaul the spy tool, which will expire at the end of the year absent congressional action.
A court opinion released in May from the Foreign Intelligence Surveillance Court, which oversees the program, found that FBI personnel had improperly accessed the database to seek information on individuals at the January 6 Capitol riot, the protests following George Floyd’s death and even donors to a U.S. congressional campaign.
In the report, expected to be released Thursday, the three Democrats concluded that Section 702 remains extraordinarily valuable to countering a wide range of national security threats, and should be reauthorized. But they argued that the eavesdropping program presents significant privacy risks to Americans — and could be reined in without undermining its intelligence value.
“The Board believes that the privacy and civil liberties risks posed by Section 702 can be reduced while preserving the program’s value in protecting Americans’ national security,” they concluded.
Of the board’s 19 recommendations, the most significant — and contentious — is likely to be a requirement that all U.S. spies and law enforcement personnel receive approval from the FISC each time they want to query the 702 repository for information on U.S. citizens.
“The scale of U.S. person queries, the number of compliance issues surrounding U.S. person queries, and the failure of current law and procedures to protect U.S. persons compels the Board to recommend a new approach,” the three Democratic members wrote.
The FISC would accept or reject each request using roughly the same compliance criteria the four agencies follow internally today: that the search is reasonably likely to return foreign intelligence information or, in the case of the FBI, evidence of a crime.
The requirement falls short of demanding that the spy agencies acquire a probable cause warrant before combing through the database for information on Americans — one of the fixes pro-reform lawmakers have pushed this year. The board also suggested carveouts in case of an emergency or if the agencies receive express consent from the object of a query.
Still, the proposal will come as a major disappointment to the White House, which has argued that any form of court approval for those queries would significantly undercut national security. It contends warrantless searches are critical to identifying and protecting U.S. individuals who have been targeted by foreign intelligence services, terrorists or cyber criminals.
The recommendation was one of the key points of contention behind the board’s split.
Williams and DiZinno, the two Republicans, argued that requiring a FISC review of searches would make it “bureaucratically infeasible” to conduct U.S. person searches and “effectively destroy the crucial portion of the program that enables the U.S. government to prevent, among other things, terrorist attacks on our soil.”
For her part, the chair of the board, Sharon Bradford Franklin, recommended Congress go further and require a probable cause warrant in cases linked to domestic crime.
The Privacy and Civil Liberties Oversight Board is given access to classified information on Section 702, making it a trusted voice on the controversial and arcane eavesdropping program. But the split guidance means it is unlikely to settle the surveillance debate on Capitol Hill or within the White House.
A bipartisan coalition of civil liberties-focused Democrats and conservative Republicans are pushing for a warrant requirement, a step that has long sparked heartburn among intelligence community allies in Congress and adamant opposition from the White House.
But conservatives who are calling for changes to the spying tool are also seeking to push forward reforms that extend beyond Section 702 and tap into broader concerns within the party about politicization of the intelligence community.
In their annex to the report, Williams and DiZinno offer seven independent recommendations, which are organized into three policy objectives.
Two of those are likely to resonate strongly with conservatives: procedural, cultural and structural changes aimed at “re-establishing public trust in the FBI” and those to guard against the political “weaponization” of Section 702.
“The Majority’s Report fails to address many of these concerns, focusing instead on a scattershot list of old ideas disconnected from the current moment,” they write.
For the board’s three Democrats, a through line of the report’s 19 recommendations is that Congress should do more to limit how frequently Americans’ data is vacuumed into the database in the first place.
The board recommended that lawmakers codify stricter guidelines about when foreigners can be targeted by U.S. spies, introduce post-hoc reviews of new eavesdropping requests, and force the intelligence community to try to estimate the volume of data it collects “incidentally” on Americans each year.
Overall, nearly 250,000 foreigners were targeted under Section 702 last year, a figure that has increased 276 percent since 2013, the board noted.
“Although Section 702 targets can only be non-U.S. persons, through incidental collection the government acquires a substantial amount of U.S. persons’ communications as well,” the report reads. “While the term may make this collection sound insignificant … it should not be understood as occurring infrequently or as an inconsequential part of the Section 702 program.”