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Last week, the House Judiciary Subcommittee on Crime and Federal Government Surveillance held a hearing on Fixing FISA: How a Law Designed to Protect Americans Has Been Weaponized Against Them, ahead of the December 2023 expiration of the Section 702 surveillance authority. The three witnesses,Michael E. Horowitz (Inspector General, U.S. Department of Justice), Sharon Bradford Franklin (Chair, U.S. Privacy and Civil Liberties Oversight Board), and Beth A. Williams (Board Member, U.S. Privacy and Civil Liberties Oversight Board) all sketched out their visions for the good, the bad, and the ugly about the invasive surveillance power.

The witnesses managed to use the hearing to sketch out a vision for what a minimally sufficient bill to reform Section 702 would look like. However, they were not nearly as skeptical as we are ofthe necessity of domestic law enforcements use of these powersespecially when the information collected under 702 could be obtained by law enforcement with a warrant through more traditional avenues.

Section 702 allows the government to conduct surveillance inside the United States by vacuuming up digital communications so long as the surveillance is directed at foreigners currently located outside the United States. It also prohibits intentionally targeting Americans. Nevertheless, the NSA routinely (incidentally) acquires innocent Americans' communications without a probable cause warrant. Once collected, the FBI can search through this massive database of information by querying the communications of specific individuals.

Previously the FBI alone reported conducting up to 3.4 million warrantless searches of Section 702 data in 2021 using Americans identifiers. Congress and the FISA Court haveimposed modest limitations on these backdoor searches,but according to several recent FISA Court opinions, the FBI has engaged in widespread violations of even these minimal privacy protections.

A just-published transparency report from the Office of the Director of National Intelligence (ODNI) includes a recalculation of these statistics, reporting instead just under 3 million searches for 2021, and around 120,000 and 800,000 for 2022 and 2020 respectively. The report says that a single cybersecurity investigation in 2021 involving attempts to compromise critical infrastructure led to approximately 1.9 million queries related to potential victimsincluding U.S. persons[and] accounted for the vast majority of the increase in U.S. person queries conducted by FBI over the prior year.

But we should be far from reassured by these revised estimates of warrantless, backdoor searches of the 702 databases. First, even the lowest reported figurenearly 120,000 searches in 2022is still a whole lot of warrantless searches of Americans private communications. Second, the methodology used in this new report requires additional scrutiny. For example, it says that the FBIs new counting method includes deduplication, where instances in which the same query term was run multiple times, whether by the same user or by different users are apparently treated as only one search. Theres no reason to consider that the right way to count, though. If police conducted separate warrantless searches of a persons house on Monday, Wednesday, and Friday, a court would likely treat that as three separate violations of the persons Fourth Amendment rights.

Regardless of the exact numbers, the disturbing history of overreach is why its so urgent that civil society, concerned people, and lawmakers act to pass legislation that radically reforms Section 702 before were stuck with another 4 years of warrantless backdoor searches of U.S. data.

Chair of the PCLOB Sharon Bradford Franklin had three vital recommendations for the committee to consider before voting on legislation to renew Section 702.

These three suggestions are a good starting point, but much more work needs to be done to address the over-classification and government secrecy that hinders accountability, enables abuse, and prevents people fromsuing to address harms done by government surveillance.

Government representatives are always quick to testify to the legitimacy and utility of these programs by vaguely referencing classified events or attacks that intelligence agencies thwarted thanks to this program. Part of the problems of over-classification and extreme secrecy is that were expected to take their word for it rather than be brought into the process of understanding whether and when these programs actually provide some utility and are notlike Section 215 of the USA FREEDOM Acttouted as absolutely necessary until their authorities expire with little to no pushback from the national security apparatus.

PLCOB member Beth Williams also suggested that Section 702 was not a bulk collection program because it required specific targeting of individuals for surveillancea claim that EFF contests as being an absolute myth.

Even worse, Williams suggested Section 702 and its invasive surveillance capabilitiesvacuuming up and reviewing communications, presumably with people overseas, should be used as a tool for vetting hopeful immigrants to the United States as well as being people vetted for government jobs. Thismight give immigration services the ability to audit entire communication histories before deciding whether an immigrant can enter the country. This is a particularly problematic situation that could cost someone entrance to the United States based on, for instance, their own ora friends political opinionsas happened to a Palestinian Harvard student when his social media account was reviewed when coming to the U.S. to start his semester.

In addition to ending warrantless backdoor searchers, Section 702 also needs new measures of transparency to enable future audits and accountability of these secretive programs. FISA has long contained procedures for private parties to sue over surveillance that violates their rights, including a mechanism for considering classified evidence while preserving national security. But, in lawsuit after lawsuit, the executive branch has sought to avoid these procedures, and the judiciary, including the Supreme Court, has adopted cramped readings of the law that create a de facto national security exception to the Constitution. We need real accountability, and that includes the opportunity to contest surveillance in court.

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At Congressional Hearing, PCLOB Members Suggest Bare ... - EFF