Changes coming down the line
So, what changes do people wish to see to Section 702 before it is reauthorized at the end of the year?
At this stage, few want to put down specific measures – the tech groups, as mentioned, have asked for "meaningful safeguards for internet users' privacy and civil liberties, measures to ensure transparency and accountability, and a commitment to continued congressional oversight."
Legal analysts were to make sure that the "backdoor search loophole" – where the FBI ends up being able to access confidential information through the careful building up of extreme interpretations of the law – is permanently closed off, probably by adding specific prohibitions on the use of Section 702 data for domestic investigations.
As for lawmakers, back in May of last year, the Senate's Judiciary Committee held a hearing titled "Oversight and reauthorization of the FISA Amendments Act: the balance between national security, privacy and civil liberties." During that hearing, several senators promised to add in privacy protections before reauthorizing, although they remained vague over what they would be.
For its part, the House Judiciary Committee sent a letter in April last year to director of national intelligence (DNI) James Clapper asking him exactly how many US citizens' data had been gathered through Section 702.
Six months later, the DNI published a document [PDF] called "The Implementation Plan for the Principles of Intelligence Transparency," which talked about principles for the release of information but supplied no actual information.
That prompted a letter [PDF] from over 30 civil rights organizations asking again for a clear statement of the number of US citizens affected. There still hasn't been a response.
It is an absolute certainty that the security services will provide the absolute minimum amount of information, and attempt to delay any efforts to gather facts about the use of Section 702, in the reasonable expectation that Congress will simply vote to reauthorize the law when it comes to the crunch.
However, the fact remains that through careful and wildly liberal interpretations of that law, the NSA, FBI and others have managed to subvert the very clear intent of the law to build a vast database of information on US citizens that should be illegal.
Since Congress is the only organization with sufficient leverage to force change and since the law is typically renewed for a five-year period, it means that the next time it will be possible to limit the mass surveillance of US citizens will be at the end of 2022.
For this reason alone, it is vital that vigorous public debate over Section 702 – what it is intended to achieve and how to prevent future abuses of the law – happen as soon as possible. ®
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