Silence on Section 702 surveillance reform was not an option

A key surveillance law is at a critical juncture. Before the end of the year, Congress must decide whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, which authorizes the government to target non-Americans located abroad and collect their communications for foreign intelligence purposes.

Section 702 has long been the subject of intense debate among members of Congress and the public, and, as its expiration approaches, lawmakers have been developing reform proposals. On September 28, the Privacy and Civil Liberties Oversight Board (PCLOB) — an independent executive branch agency of which I am the chair — released our report examining Section 702. The report should help inform the reauthorization debate.

The report provides a detailed description of how the program operates, analyzes its value to national security and the threats to privacy and civil liberties it presents, and offers 19 recommendations to address these risks while preserving the program’s value. Seven of the recommendations call for legislative action by Congress as part of any reauthorization.

Most importantly, the board recommends that Congress require judicial approval for searches of collected communications that seek information about specific Americans. In targeting non-Americans located abroad, Section 702 surveillance also “incidentally” collects Americans’ communications if they are in contact with a target; the government is then permitted to conduct “U.S. person queries” that search through 702 databases seeking Americans’ communications.

Such searches are currently conducted without any judicial or other external review, even though communications returned by these searches can be highly sensitive, such as exchanges with loved ones, medical providers, lawyers or religious leaders. Requiring court orders before government personnel may view these communications would apply a hallmark safeguard of the American legal system to protect Americans’ privacy.

The board’s recommendations for Congress also include measures to strengthen the guardrails to prevent overbroad targeting, provide insight into the scope of incidental collection of Americans’ communications, and improve operation and transparency of the Foreign Intelligence Surveillance Court.

Though recent press coverage has focused on the board’s divisions over Section 702, there is plenty of common ground among all our members. The report does include a separate statement from board members Beth Williams and Richard DiZinno in which they state that the report should not be attributed to them, though they also acknowledge there that they “share points of agreement” with the report, and that the board worked together “diligently for the better part of a year” with the goal of reaching consensus.

All five board members agree that the program is valuable to protect national security, and that significant reforms are needed. No board member has called for the program to lapse, and no board member has called for a clean reauthorization.

To be sure, there is real substantive disagreement between the board’s recommendation for judicial approval of U.S. person queries and the approach taken in the minority separate statement. The board has concluded that the fundamental safeguard of independent judicial review is necessary to protect Americans’ right to privacy in their communications, whereas the minority believes such external review is not needed.

This is not a partisan dispute. Many members of Congress in both parties have expressed deep concerns over warrantless searches in 702 databases seeking information about Americans.

Yet it is extremely troubling that some have chosen to attack our agency’s legitimacy rather than engaging in the substantive debate. Most problematic is that these individuals have provided a false description of our agency, its history and its critical role. PCLOB’s recommendations may be more persuasive with Congress when they are unanimous and bipartisan, but unanimity is not required by PCLOB’s authorizing statute nor its rules of operation, nor has it been past practice.

To the contrary, PCLOB’s authorizing statute explicitly calls for reports to include any “minority views,” anticipating likely divisions over the complex issues covered by the PCLOB’s oversight. My goal is generally to find consensus, but unfortunately that is not always possible. Our reports have regularly included board member separate statements that explain areas of disagreement with board reports, including the board’s seminal reports published in 2014 on Section 702 and on the telephone records program, as well as its 2020 report on the USA Freedom Act.

While there is great power in presenting a bipartisan consensus approach, there is also value in presenting a range of views to inform congressional debate. Further, the report’s 100-plus pages of factual narrative deliver an authoritative description of the program: PCLOB’s entire report was subject to accuracy and classification review, through which the intelligence agencies and the Justice Department verified the facts contained therein. This unclassified account should provide a valuable resource to Congress.

It would therefore be irresponsible and dangerous for PCLOB to enable a “heckler’s veto” by refusing to publish this report, or any report that is not unanimous. The board’s oversight role is too important.

Sharon Bradford Franklin is Chair of the Privacy and Civil Liberties Oversight Board.