Divided oversight panel recommends new limits for Section 702 searches

Jason Macuray

A key government oversight board is divided along partisan lines about placing new restrictions on a controversial foreign surveillance tool before it lapses at the end of the calendar year.

The recommendations from the Privacy and Civil Liberties Oversight Board (PCLOB) could pose a new headache for the Biden administration, which desperately wants to renew the authority known as Section 702 of the Foreign Intelligence Surveillance Act.

It allows U.S. intelligence agencies to conduct warrantless surveillance of the electronic communications of non-American citizens outside the country. However, it also incidentally gathers the personal data of an unknown number of Americans.

In a 3-2 split, Democratic panel members on Thursday recommended that spy agencies should be required to obtain court approval before they can query the massive repository of data gathered under the statute for information on U.S. citizens without acquiring a warrant.

Although the majority didn’t recommend ending the program, citing its national security value, the proposed requirement would likely seriously curtail the number of Section 702 searches that the FBI carries out.

In a statement, Board Member Travis LeBlanc called 702 a “key feature” in domestic intelligence and criminal law enforcement.

“Such a program warrants court approval of individual U.S. person queries, which would reduce compliance errors, promote accountability, and build public trust in a surveillance program long beleaguered by a wide range of privacy and civil liberties threats,” he said.

The suggestion prompted a rebuttal from the panel’s Republican members, who called it a valuable tool for national security.

“We strongly disagree with the majority of the Board, which has not focused on the actual risks at hand,” board members Beth Williams and Richard DiZinno said Thursday in a statement.

The fallout from the report, which overall makes 19 recommendations to bolster the surveillance program’s privacy protections, is a sharp contrast to the last time the board reviewed the program in 2014 when it unanimously approved 10 suggestions to improve it.

It is also a departure from the findings of the President’s Intelligence Advisory Board from earlier this year. That body recommended Congress enhance the rules on Section 702 but did not propose a warrant requirement.

The latest conclusions, while non-binding, are sure to hamstring the White House’s months-long campaign to renew Section 702 before it expires. The administration has declassified several instances where the tool was used, particularly against cybersecurity threats, and national security leaders across the federal government have made public statements that paint a dire picture of what would happen if it were to lapse.

“If we lose this authority, it is catastrophic for our national security efforts,” Deputy Attorney General Lisa Monaco said Tuesday during a Washington Post Live event. “It is vital to our ability to understand threats from cyber threats to nation state adversaries to Russia, Chinese Iran, North Korea plans and intentions across a whole host of threats.”

The oversight board’s report is sure to be seized on by congressional critics of Section 702, who have pointed to recently declassified opinions made by the Foreign Intelligence Surveillance Court, which oversees the program, that have found repeated privacy violations by the FBI.

Previous opinions found the bureau had improperly searched the database for information on individuals at the January 6 riot and the protests following George Floyd’s death. A more recent opinion found that while reforms the FBI made to prevent such incidents were having an impact, analysts still improperly gathered data on Americans.

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Martin Matishak is a senior cybersecurity reporter for The Record. He spent the last five years at Politico, where he covered Congress, the Pentagon and the U.S. intelligence community and was a driving force behind the publication’s cybersecurity newsletter.

 

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