Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) is scheduled to expire in December 2023. In advance of the anticipated reauthorization debate, the Privacy and Civil Liberties Oversight Board (PCLOB) requested comments on a Section 702 oversight project.
Section 702 has been riddled with problems from the outset. Although the law nominally targets foreigners overseas, it has become a rich source of warrantless access to Americans’ communications and other private data, which are collected “incidentally” but in massive amounts. The law also fails to protect the privacy rights of foreign nationals, violating our international obligations and causing economic headaches for the United States. Finally, Section 702’s limitations, inadequate as they are, do not apply to surveillance conducted overseas, even though such surveillance is equally likely to sweep in Americans’ phone calls, texts, and emails.
The Brennan Center submitted comments recommending that the PCLOB use its investigative powers to uncover exactly how many communications involving Americans are collected under Section 702, as well as to investigate certain aspects of the government’s targeting decisions and uses of Section 702. In addition, the Brennan Center urged the PCLOB to propose legislative reforms to Section 702 that would narrow the permissible pool of targets; shore up protections for Americans’ data; extend the reach of FISA to overseas surveillance that affects Americans’ privacy; and enhance transparency and accountability.