Civil liberties board backs U.S. snooping program, but demands big changes

The civil liberties board urged Congress on Thursday to renew the government’s top snooping tool, which scoops up communications from thousands of targets, saying that even with all its flaws, the program has sniffed out serious terrorist threats to the U.S.

All five members of the Privacy and Civil Liberties Oversight Board agreed on the value of what is known as the Section 702 program but said they have serious questions about its reach into Americans’ lives.

Their most important recommendation was to require the FBI and other agencies to prove “probable cause” to a court before checking an American’s name against the database.

Two board members were so troubled that they refused to sign on to the final report. They said Section 702 of the Foreign Intelligence Surveillance Act must be revamped to prevent weaponization against Americans and pointed to government actions in the 2016 presidential campaign as a warning.

They said the government should focus the tool more on foreigners, particularly those seeking to enter the U.S. as immigrants or visitors.

Congress was rushing toward an end-of-year deadline as the report was released. Unless Section 702 is renewed, the authority to run the government’s most important snooping tool will lapse.

All five members of the civil liberties board said they believe the country is safer with Section 702 but agreed that it needs changes to protect Americans from being snared.

“The Section 702 program plays a critical role in protecting our security, but it also presents significant threats to our privacy and civil liberties,” said Sharon Bradford Franklin, chairwoman of the civil liberties board.

Under Section 702, the intelligence community gathers and stores emails and other communications. The targets are supposed to be “non-U.S. persons located abroad.” That means no American citizens or foreigners living inside the U.S. should have their communications scooped up.

In 2022, nearly 250,000 targets had their communications collected, or twice the rate of five years earlier.

U.S. citizens talking with foreign targets can have those communications collected. Several agencies, including the FBI, can query the data for investigations but must follow the rules when writing queries so they don’t intrude too deeply into Americans’ communications.

Those guidelines have been breached repeatedly, angering lawmakers on Capitol Hill who have questioned whether the program is worth the intrusions into Americans’ lives.

Some doubt that Congress can muster the votes to continue the program past its expiration at the end of this year.

The oversight board said the most significant danger in the Section 702 program lies with the ability to query the data using the name of an American. The FBI is one of the agencies allowed access to the program, so domestic law enforcement can use the data to investigate Americans or, worse, use it at the preassessment stage of an investigation.

That means Americans can be snooped on without “any basis to suspect an individual of wrongdoing,” the board said.

That led to the board’s biggest recommendation: to require the government to seek approval from the Foreign Intelligence Surveillance Court before querying an American. The government would need probable cause, the standard for a search warrant.

National security officials have usually objected to that idea. They say it is unworkable and cumbersome and could limit their work.

Security officials boast that more than half of the items presented to the president in his daily security brief contain information gleaned from Section 702.

Civil liberties advocates said the report punctures the security officials’ claims.

“Congress should take note and refuse to reauthorize Section 702 without robust reforms to protect Americans’ privacy,” said Elizabeth Goitein at the Brennan Center for Justice.

In their report, board members complained that the government doesn’t collect enough data about its activities. The National Security Agency says it cannot guess how many Americans’ data the program has collected.

The board urged Congress to require the intelligence community to develop accurate data so lawmakers can evaluate the risk trade-offs.

Beth A. Williams and Richard E. DiZinno, the two Republicans on the board, said they couldn’t sign off on this year’s report because they felt the recommended changes would reduce civil liberties.

“The entire board agrees that the Section 702 program is highly valuable and should be reauthorized. But the majority’s recommendations would increase the privacy and civil liberties risks to U.S. persons while rendering the program significantly less effective at protecting America’s critical infrastructure, countering foreign espionage and thwarting terrorist attacks on U.S. soil,” they wrote in an annex to the report.

They pointed to the FBI’s abuse of its snooping powers during the 2016 presidential election campaign when the bureau falsified information to surveil a member of the Trump campaign and targeted a crucial national security adviser.

Mr. DiZinno and Ms. Williams said the government needs new rules to unmask a U.S. person. Unmasking is when a name is attached to a specific communication, tearing down the veil of anonymity that is supposed to protect Americans from abuse of communications monitoring.

“Moments of public doubt, like this one, offer the opportunity to redouble efforts to restore trust in our public institutions and accountability in our public servants,” they wrote.

The two experts said the government could use its data to stop bad actors from abusing the U.S. immigration system. They said the law should allow for data scans of visa applicants to detect any secret flags.

“In our view, it is unacceptable that such information is lawfully collected, but rendered essentially unusable or severely limited. Vetting is a crucial national security function, and Congress should make clear that Section 702 may be utilized to support it,” the two wrote.

They declined to appear with their three Democratic colleagues at a public event to tout the report. They said they didn’t want to “legitimize” the “deeply flawed” conclusions.

The divisions in this year’s report stand in contrast with the board’s 2014 report, which was unanimous and helped shape Congress’ effort to reauthorize Section 702.

Ms. Franklin issued a statement saying she backed the report but believed it should have gone further to protect Americans from searches. She said searching the data for an American implicates the Fourth Amendment, a standard the government should use to get court approval.