Drawing a Line on Mass Surveillance: How Congress Must Reform Section 702

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Originally published at Just Security

On Monday [March 20], members of the House Intelligence Committee held an open hearing into Russian involvement in the 2016 presidential election that included a discussion of whether the U.S. government improperly surveilled officials or associates of any campaign. During that hearing, members of both parties favorably referred to Section 702 of the FISA Amendments Act, a sweeping piece of intelligence legislation that is up for reauthorization later this year and, in our view, permits significant offenses against Americans’ civil liberties. Section 702 authorizes two truly alarming efforts that must be reformed or ended.

The first program is Prism, which produces the majority of information collected under Section 702, and involves ordering companies to search all information in their possession and copy whatever data is tied to something intelligence agencies call ‘selectors.’ A selector is like a keyword in a search engine; they can be very broad and are connected to enormous amounts of information, all of which is provided to the government. A Washington Post analysis found 9 out of 10 people whose account information was collected were not the “target” of an intelligence investigation. Half were American. For Prism to work, the government searches and copies emails and other sensitive information, including information traditionally protected by the Fourth Amendment’s probable cause standard.

The second program is Upstream, which collects information from the Internet’s ‘backbone,’ which includes the undersea cables linking continents and thereby enabling the global connectivity the Internet depends on. By compelling the entities that control that infrastructure (like AT&T) to scan or otherwise tap the information flowing through them — again, based on certain selectors — intelligence agencies collect information in real-time. This scanning affects all information traveling across the cables, with no regard for privacy or sensitivity. Information tied to these selectors, including our most intimate communications, is turned over to the government and stored for years (or indefinitely). 

Given the many problems with Section 702, any legislation that does not include the following five reforms would raise grave concerns, prompting grassroots organizations like ours to oppose the measure. In the most recent fight over surveillance, overreach by surveillance hardliners led to hundreds of thousands of people contacting Congress to demand reform and the temporary expiration of three surveillance provisions.

Read more at Just Security