Author: Jeff Cassman

Today, as part of its new oversight report on Section 702 of the Foreign Intelligence Surveillance Act (FISA), the majority of the Privacy and Civil Liberties Oversight Board (PCLOB) recommended that agencies be required to obtain individualized judicial approval before accessing the results of searches of Americans’ communications, otherwise known as “backdoor searches,” except with the consent of that person or under exigent circumstances. The PCLOB majority also recommends that Congress, as part of any reauthorization of Section 702, undertake significant reforms including: (1) codifying President Biden’s Executive Order specifying the legitimate objectives of surveillance; (2) strengthening the FISA Court system; (3) prohibiting the government from resuming “abouts” collection; and (4) requiring the government to publish an estimate of how many Americans’ communications are collected pursuant to Section 702.

EPIC and a bipartisan coalition of civil society groups have previously called for broad reform to Section 702 and related surveillance authorities. Following the PCLOB report’s release, privacy, civil liberties, and civil liberties groups released a joint statement reiterating the need for these reforms.

Jeramie Scott, EPIC Senior Counsel & Director of the Project on Surveillance Oversight, released the following statement regarding the PCLOB’s report:

“The PCLOB’s report puts to rest any debate over requiring individualized judicial approval before accessing Americans’ communications acquired without a warrant. However, as our bipartisan coalition has made clear for months, reforming Section 702 alone will not address the broader warrantless surveillance ecosystem that affects Americans and their communities every day. Congress must rise to the occasion and prohibit the government from relying on proclaimed executive authority or data brokers to skirt its constitutional and statutory obligations to Americans.”

Today, the Privacy and Civil Liberties Oversight Board (PCLOB) issued its long-awaited report on Section 702 of the Foreign Intelligence Surveillance Act. The report, endorsed by a majority of the Board’s members, sheds new light on abuses over the past few years, revealing that, “[i]n the reporting period covering November 2020 to December 2021, non-compliant queries related to civil unrest numbered in the tens of thousands.”

The report includes recommendations that Congress enact robust reforms as part of any reauthorization of Section 702. Among other reforms, it urges Congress to (1) require the government to obtain individualized judicial approval to access communications retrieved through U.S. person queries (commonly known as “backdoor searches”), with exceptions for consent and exigent circumstances; (2) codify President Biden’s executive order specifying the legitimate objectives of surveillance; (3) improve the workings of the FISA Court, including by strengthening the role of amici; (4) prohibit the government from re-starting “abouts” collection; and (5) impose a deadline for declassifying significant FISA Court opinions.

Privacy, civil rights, and civil liberties groups issued the following statement responding to the report:

“The message of the Board’s report is clear: individualized judicial review of U.S. person queries is critical to protect Americans’ rights and prevent further abuses. The report flatly rejects the government’s self-serving claim that individualized judicial review is unworkable. It also rejects the baseless notion that broad categories of these searches, such as searches for foreign intelligence or so-called ‘defensive’ searches for potential victims’ information, should be exempted from this requirement. And it rejects the fallacy that the FBI’s tweaks to its internal procedures are sufficient to address the acute risks posed by backdoor searches.

“Three members of the Board stated that they would support a probable cause standard for U.S. person queries in any criminal investigation, including those related to foreign intelligence. In her statement, the Chair of the Board compellingly explained why the full ‘probable cause’ standard is required by the Fourth Amendment and necessary to safeguard Americans’ privacy. We believe the same logic supports a requirement for a probable cause order for any U.S. person query.

“We note that the Board limited its inquiry and its recommendations to Section 702. It did not address many of the other issues that are very much part of the current debate, including the government’s use of data brokers to circumvent legal protections for Americans’ privacy and the use of overseas surveillance to collect Americans’ information without statutory authority or judicial oversight. Congress, however, must address these issues. If it limits itself to reforms of Section 702, the government will simply continue its warrantless surveillance of Americans using these other methods.”

More than thirty organizations from across the political spectrum have called for a range of reforms as a precondition for any reauthorization of Section 702. Those reforms include:

In the last century, states have had great control over channels of media. In most of the West, lobbying groups and cartels working with “liberal” and “democratic” governments regulated who could broadcast while governments, with their endless pools of money and political force, competed alongside private, or foreign, establishments. South Africa banned television entirely, and then after legalizing it in the ’70s, the industry was still controlled by the state.

All media in the Soviet Union was centralized and controlled by the state immediately after the October Revolution—the Bolshevik leaders understood the importance of media control. Every state in the last century has had some grip over the country’s media, propagating favorable narratives and restricting the unfavorable to maintain control over the population.

Traditional media centralization by the state was then rendered obsolete with the popularization of the internet. As the internet and its related technology developed, decentralization became more pronounced and widespread. When anyone can start a podcast on a plethora of websites with anyone else in the world who has the technology, or when miniature documentaries and video essays can be produced and uploaded by anyone to anywhere that accepts the format, the state-operated or state-supported media that dominated the last century becomes effectively out of date. The new competition was too dynamic, adaptive, decentralized, and evasive for the old system to outcompete, outproduce, or outright ban.

Traditional media wasn’t the only thing affected by the internet. Chat boards, forums, and other means of direct communication undermined multiple key legitimizers of the state, specifically academics and journalists. Barring local rules and guidelines, anyone was free to question and discuss any aspect of academia, usually under the freedom afforded by anonymity.

This innovation was disastrous from the state’s perspective. Total dominance of every channel of media was rendered impossible in the span of a few years. Some nations attempted to restrict the internet though whatever means were available, like with China’s Great Firewall, although there are multiple ways to circumvent the restrictions through VPNs or proxies. Western nations opted for subtler restrictions like working through private companies behind closed doors. A stronger and more insidious attack against the benefits to liberty provided by the internet, however, lies in the campaigns against anonymity. Eliminating anonymity, and privacy by extension, solves most of the state’s problems that were caused by the advent of the internet, which is exactly why states and their apologists have embarked on their crusade against it.

Solving the State’s Problems

Anonymity is very dangerous from the state’s perspective as it can no longer rely on its narratives, academics, journalists, and other sources of legitimacy to be publicly unquestioned. With anonymity, superior arguments (as determined by the onlookers) win out. While this does not necessarily mean that truth will prevail in every instance, it does mean that credentialism, a major crutch of the state’s defenders, is bypassed. Onlookers can instead view arguments where one or both sides have entirely removed…