Section 702 Surveillance Can Work While Protecting Americans' Privacy, Say Experts
A government surveillance program that allows U.S. intelligence agencies to target the electronic communications of foreigners located overseas has shown value, said civil liberties experts during a Congressional Internet Caucus (CIC) event Friday about Section 702 of the Foreign Intelligence Surveillance Act. But the main question, said Michelle Richardson, deputy director-Freedom, Security, and Technology Project at the Center for Democracy & Technology, is "what will it look like? You can create a program going forward that still allows the government to wiretap foreigners abroad without getting a warrant but better protects Americans' privacy."
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The program, which would need to be reauthorized by the end of the year, has been "useful and effective" in pursuing foreign terrorists, said Elizabeth Goitein, co-director-liberty and national security program at the Brennan Center for Justice at New York University School of Law and a critic of 702. She said recommended changes would keep the program's core intact. Changes include "narrowing the scope of surveillance so that it's not any foreigner overseas" but someone who reasonably poses a threat, she said. The back-door search loophole needs to be closed and government needs to obtain a warrant if it wants to search an American's communications that were incidentally collected and stored (see 1706070047). She said the five-member Privacy and Civil Liberties Oversight Board, down to one member, is in danger of "fading into obsolescence" unless nominees are named (see 1612270051).
"Any random foreigner cannot be subject to surveillance under Section 702" but must be assessed to have intelligence information that's critical, said Stuart Evans, deputy assistant attorney general-intelligence in DOJ's National Security Division. He said about 100,000 foreigners are subject to surveillance under 702. "The assumption that millions and millions of people are under surveillance under this program overseas for no reason just isn't borne out from the facts," he said. He favored permanent reauthorization of the program, which Sen. Tom Cotton, R-Ark., has proposed in a bill (see 1706270052).
Adam Klein, senior fellow at the Center for a New American Security, said any surveillance program will incidentally collect information about innocent people but "the point of surveillance" is to understand a target's pattern of life, who they're conspiring with and what they're doing. He cited use of 702 that surveiled an al-Qaeda courier in Pakistan who communicated with Colorado resident Najibullah Zazi, who wanted to blow up a New York City subway and pleaded guilty in 2010 to that charge. On the other hand, he said most Americans' data pulled in via 702 might involve people not under suspicion, and the government needs to ensure such information is protected. "That's a key subject to debate about the reauthorization of this program," said Klein, who favored reauthorization with some changes, including appointing a privacy expert that would advise the FISA court.