July 6, 2016

The following is a guest post by Jadzia Butler, the Privacy, Surveillance, and Security Fellow for the Center for Democracy & Technology (CDT). More information about the author is displayed below.

Imagine a world of constant, ubiquitous surveillance where your every move may be monitored by the government at any time: every email you send, every picture you take, every book you read, every website you visit, and every political rally you participate in. Would you change your behavior as a result?

Of course you would. Even those who think they have “nothing to hide” behave differently when they believe they are being watched than they do when no one is looking. This is especially true, however, for those who may pose a threat to the status quo, be it because they are exploring new or controversial ideas or because their behavior does not comport with what is currently “acceptable.” These so-called “dissidents” are critical to progress, innovation, and prosperity, and we all suffer when their actions are chilled by the fear of surveillance. In short, the right to privacy is the foundation upon which any free, flourishing society is built.

The right to privacy’s profound importance is why debates surrounding the U.S. government’s surveillance programs should be robust, detailed, and as public as possible. A key portion of the Foreign Intelligence Surveillance Act (FISA), Section 702, is set to expire next year. Despite appearing to be focused on “foreign intelligence” and aimed at collecting the communications of foreigners, Section 702 actually results in spying agencies collecting a substantial amount of information on Americans and information unrelated to foreign intelligence. Worse, the statute permits agencies such as the FBI to use that collected information for lots of purposes – including investigating ordinary crime – without ever getting a warrant or court order from a judge. That means our law is missing a key constitutional protection.

Although there are many ways to improve the 702 surveillance program, here are three high-priority suggestions:

  • Close the “Backdoor Search Loophole” – When the government uses the 702 program to spy on foreigners, it also collects information on people in the US that the government can later search as part of investigations of ordinary crimes unrelated to foreign intelligence or national security. This is called a “backdoor search loophole” because it enables the government to obtain content that would otherwise be unavailable without a warrant. The solution is simple: any later search of Americans’ information for other purposes should only happen after a judge has approved the search based on a likelihood that the American target is a terrorist, spy, or other “agent” of a foreign power, or that the search will return evidence of a crime.
  • Narrow the Definition of “Foreign Intelligence Information”  Section 702 has an overbroad definition of Foreign Intelligence Information (FII). The definition includes any information on foreigners that relates to the conduct of U.S. foreign affairs, which can include practically anything – from peaceful protests in the streets of Paris, Brasília, or Madrid to a foreign government’s economic policies and practices. This means lots of ordinary people are spied on and irrelevant information is collected. FII should be narrowed to the purposes previously outlined by President Obama in PPD-28, which include the detection and countering of espionage, terrorist threats to the United States, and the proliferation of weapons of mass destruction.
  • End “About” Collection – Right now, through the Upstream collection program, the US government uses its Section 702 authority to seize communications that are “about” a given targeted selector (such as an email address). This means that the government is searching, without a warrant, for communications that are not even to or from a target thought to have valuable intelligence information – rather, communications of non-targets can be collected into government databases if they simply happen to mention something “about” a targeted selector. Congress should end this ability to collect “about” communications by only permitting the government to collect communications to or from a target.

These recommendations, although incomplete, would help bring one of the most controversial, convoluted government surveillance programs in American history within the bounds of the U.S. Constitution and numerous international human rights obligations. Fundamentally, the debate about government surveillance is a debate about freedom – and it will undoubtedly continue long into the future.

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