Feds' privacy panel backs renewing Feds' S. 702 spying powers — but with limits

FBI agents ought to get spy court approval before reviewing US persons' chats, board reckons

A privacy panel within the US government today narrowly recommended that Congress reauthorize the Feds' Section 702 spying powers — but with some stronger protections for US persons.

The Privacy and Civil Liberties Oversight Board voted 3-2 on party lines to support all 19 recommendations in the Section 702 report, including one that would tighten rules on FBI agents to get approval from the secretive Foreign Intelligence Surveillance Court to review Americans' electronic communications. 

The board also said it would support legal action requiring probable cause as the standard for court approval before federal agencies can run otherwise warrantless Section 702 queries on US persons to retrieve evidence of a purported crime.

"Although the Section 702 program presents serious risks to, and actual intrusions upon, the privacy and civil liberties of both Americans and non-Americans, the United States is safer with the Section 702 program than without it," the panel said in a report [PDF] published on Thursday. 

At issue is Section 702 of the Foreign Intelligence Surveillance Act, which allows US intelligence agencies to surveil foreigners' overseas emails, texts, and phone calls. However, if these electronic communications are with or about Americans, then those individuals' data can get swept up in the surveillance dragnet too.

"The Board further finds that the most serious privacy and civil liberties risks result from US person queries and batch queries, and the government has not demonstrated that such queries have nearly as significant value as the Section 702 program overall," the PCLOB report added.

Section 702 is set to expire at the end of the year unless it is renewed by US lawmakers.

Reform Section 702? Or the FBI?

The two Republicans on the privacy board submitted their own recommendations and called the three Democrats' analysis "deeply flawed."

Instead of changing the surveillance program itself, the board's minority suggests reforming the FBI, which has come under scrutiny for its repeated Section 702 abuses. This has included improperly spying on senators, peaceful protests, January 6 rioters, and Congressional donors.

Members Beth Williams and Richard DiZinno recommended the "FBI should reform its structure to better incorporate privacy and civil liberties into the fabric of its operations," and the "FBI should improve its Section 702 compliance processes and auditing" with an annual review by the US Department of Justice.

As the battle over renewing the controversial snooping program heats up, the FBI has repeatedly said it "cannot afford to lose" Section 702, and touted changes it has made to prevent abuse. This includes better query training and stricter approval requirements for some "sensitive" searches involving American elected officials, journalists and the like.

Over the summer, FBI Director Christopher Wray said that Section 702 data provided 97 percent of analysts' "raw technical reporting on cyber actors." 

It also allowed the FBI to confirm the criminals behind the Colonial Pipeline cyberattack, thwart an attempt by Chinese spies to compromise a US transportation hub's network, and recover all the data stolen from a nonprofit in an Iranian ransomware attack last year, Wray claimed.

Despite these cybersecurity wins, and the FBI's attempts at Section 702 reform, data privacy and civil liberties advocates say the spying on Americans won't stop unless Congress gives Section 702 a major overhaul.

One of these groups advocating for reform, the Center for Democracy and Technology, applauded the PCLOB report's recommendations, including requiring FISA court approval for US person queries, limiting the scope of permissible targeting,  strengthening the role of FISA Court amici, and outlawing so-called "abouts" collections.

"Of these additional reforms, limiting scope of surveillance is most important," said Jake Laperruque, deputy director of CDT's Security and Surveillance Project, in a series of social media posts.

"By reasonably limiting targets, we can prevent overbroad surveillance of innocent persons abroad, and Americans' they communicate with," he said, adding that this particular reform plays a major role in preserving the US-EU data flow agreement. ®

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