A deeply divided U.S. government panel has issued a series of recommendations regarding a powerful surveillance program that has ignited a fierce debate over its impact on Americans’ privacy and national security. The findings of the Privacy and Civil Liberties Oversight Board, a bipartisan government watchdog composed of surveillance law experts, were released in a report that highlighted the stark divisions within the panel.
In a split decision with a vote of 3-2, the majority of the board argued that the program, which allows the National Security Agency (NSA) to collect vast amounts of intercepted emails, texts, and electronic data from U.S. technology providers like Meta, Apple, and telecom firms, poses significant risks to privacy and civil liberties. While acknowledging its value in terms of national security, they emphasized the need for substantial restrictions.
The program in question falls under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is intended to target foreign suspects overseas but has been criticized for capturing a significant volume of U.S. data without a warrant. This controversial provision of the law has raised concerns about its impact on the privacy of American citizens.
The fate of Section 702 has been uncertain, particularly in light of recent revelations of abuses, primarily by the Federal Bureau of Investigation (FBI). The board’s recommendations are likely to add momentum to lawmakers from both parties who have been considering significant changes to the law.
The majority of the board identified several key issues with the Section 702 program. They raised concerns about the potential for overbroad government collection of personal communications, insufficient oversight and review, and the inadvertent surveillance of data belonging to Americans that lacks any national security value.
Despite these concerns, the majority did not advocate for the termination of the program. Instead, they offered a set of 19 recommendations aimed at preserving the program’s functions while introducing substantial privacy protections. These recommendations included codifying recent controls implemented within the FBI and other agencies, enhancing transparency requirements for the secretive FISA court, and implementing stricter auditing of data searches.
One particularly crucial recommendation from the majority was the requirement for spy agencies to obtain approval from the FISA Court before accessing intercepted data associated with American identities, except in limited circumstances. This recommendation diverged from the findings of a separate presidential panel of intelligence advisers, which also called for restrictions on the FBI’s access to the program but stopped short of endorsing the privacy panel’s recommendation.
The primary concern among lawmakers considering reforms has been the search and retrieval of U.S. data within the Section 702 program. While it is intended for foreign national-security suspects living overseas, the program inevitably collects information about Americans, especially when they communicate with intelligence targets abroad.
Biden administration officials have expressed reservations about imposing a warrant requirement for U.S. searches, arguing that it would burden the program’s core functions and render them ineffective. The FBI, in particular, has conducted numerous searches for U.S. data within the program, often without adhering to existing legal requirements.
In a comprehensive dissent that effectively serves as a counter-report, the two members of the board who dissented accused the majority of offering recommendations that could potentially harm privacy interests more than protect them. They argued that the majority’s focus on speculative harms was not grounded in operational realities or available evidence.
However, the dissenting minority also expressed frustration with the repeated violations and improper searches uncovered in recent years, particularly by the FBI. These included searches of political campaign donors, individuals involved in George Floyd demonstrations, and those investigated in connection with the January 6, 2021, U.S. Capitol breach. The minority report offered its own set of recommendations for changes, though they were less extensive than those put forth by the majority.
