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Privacy board recommends changes to Section 702 surveillance authority

The Biden administration seeks congressional reauthorization of the program, which expires at the end of the year

FBI Director Christopher Wray defended the Section 702 program during a House Judiciary Committee oversight hearing in July.
FBI Director Christopher Wray defended the Section 702 program during a House Judiciary Committee oversight hearing in July. (Tom Williams/CQ Roll Call)

An independent U.S. government board on Thursday recommended that Congress make changes to a controversial foreign surveillance authority, concluding that the program is highly valuable in protecting national security but also creates “serious privacy and civil liberties risks.”

The Privacy and Civil Liberties Oversight Board issued the 297-page report as the Biden administration seeks congressional reauthorization of the surveillance authority known as Section 702, which expires at the end of the year.

Section 702 allows the U.S. government to collect the digital communications of foreigners who are located outside the country. But some lawmakers from both parties have lambasted the breadth of the surveillance power and zeroed in on privacy concerns, such as how it allows U.S. authorities to run warrantless searches for information on Americans.

The board’s report recommended that Congress add greater oversight for when authorities want to search for information on Americans. And it said authorization from the Foreign Intelligence Surveillance Court, or FISC, should be required for those types of searches.

Searches for information on Americans — along with batch queries, where authorities search with hundreds or thousands of search terms at once — result in “the most serious privacy and civil liberties risks,” the report found.

Congress should also make changes to strengthen the transparency of FISC and its decisions, the report stated.

The board recommended that Congress codify some aspects of the program, such as requiring the government to submit to the FISC a random sample of targeting decisions and supporting written justifications from intelligence agencies for a judicial review as part of the annual Section 702 recertification process.

The board also made recommendations for procedures at the intelligence agencies, including the Justice Department, the National Security Agency, the FBI and the CIA, such as an annual Justice Department review of each FBI field office’s compliance with the procedures of Section 702.

The board’s report could bolster arguments by lawmakers who see the expiration of the law this year as a leverage point to demand changes.

Travis LeBlanc, a member of the oversight board who voted to approve the report, said in a press release that a key feature of Section 702 is domestic intelligence and criminal law enforcement, even though the authority is touted as a foreign intelligence tool.

“Such a program warrants court approval of individual U.S. person queries, which would reduce compliance errors, promote accountability, and build public trust in a surveillance program long beleaguered by a wide range of privacy and civil liberties threats,” LeBlanc said.

The Foreign Intelligence Surveillance Court has found “persistent and widespread” compliance problems with the FBI’s searches under Section 702.

A court opinion released earlier this year found that the FBI had improperly searched foreign surveillance information using the last names of a U.S. senator and a state-level politician.

Sharon Bradford Franklin, the chair of the board, who also approved the report, said in a press release that she hopes the report will be a resource to Congress.

The five-member oversight board was split on approving the released report, with two members of the panel saying the majority had failed to recommend the correct changes and produced a “deeply flawed” report.

Two members — Richard DiZinno and Beth A. Williams — said the board majority should have recommended other changes, such as measures to guard against the “potential weaponization of the program for political or other improper purpose.”

The two board members said there needs to be clear legal authority to use Section 702 information to vet foreigners entering the U.S. and people applying for U.S. government security clearances.

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