Deja Vu: The FBI Proves Again it Can’t be Trusted with Section 702

By Matthew Guariglia

We all deserve privacy in our communications, and part of that is trusting that the government will only access them within the limits of the law. But at this point, it’s crystal clear that the FBI doesn’t believe that either our rights nor the limitations that Congress has placed upon the bureau matter when it comes to the vast amount of information about us collected under FISA Section 702.

The latest exhibit in this is in yet another newly declassified opinion of the Foreign Intelligence Surveillance Court (FISC). This opinion further reiterates what we already know, that the Federal Bureau of Investigation simply cannot be trusted with conducting foreign intelligence queries on American persons.  Regardless of the rules, or consistent FISC disapprovals, the FBI continues to act in a way that shows no regard for privacy and civil liberties.

According to the declassified FISC ruling, despite paper reforms which the FBI has touted that it put into place to respond to the last time it was caught violating U.S. law, the Bureau conducted four queries for the communications of a state senator and a U.S. senator.  And they did so without even meeting their own  already-inadequate standards for these kinds of searches.

How many times will the FBI get caught with their hand in the cookie jar of our constitutionally protected private communications without losing these invasive and unconstitutional powers?

Specifically, this disclosure concerns Section 702 of the 2008 Foreign Intelligence Surveillance Amendments Act, which authorizes the collection of overseas communications that can be queried by intelligence agencies in national security investigations under the oversight of the FISC. The FBI has access to the collected information, but only for limited purposes—purposes which it routinely and grossly oversteps.

Apart from the FBI’s apparent failure to even abide by its own rules, the bigger problem with this arrangement—even under the law—is that we live in a globalized world where U.S. persons regularly communicate with people in other countries. This creates a massive pool of digital communications in which one side of the conversation is an American on U.S. soil. The FBI, investigating crimes in the U.S., has spent the better part of 15 years sifting through these communications without even a warrant. So the fact that they cannot even abide by their own rules, much less the ones set by Congress, is a big deal.

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But now we have a chance to close this unconstitutional loophole and block the FBI—or any other government agency—from searching any of our communications without a warrant. Section 702 is set to expire in December 2023.  Sadly, both the FBI and Biden Administration have signaled that they are all in when it comes to trying to keep open the FBI’s warrantless backdoor searches of 702 data. They like their hands fully in the cookie jar and at this point are likely confident that, even when they get caught, the FISC won’t take any serious steps to stop them.

But they won’t get that renewal without a fight. After several hearings in the House Judiciary Committee, it is clear that there is bipartisan support for the idea that Section 702 must drastically change, or else face termination (called sunsetting in DC) entirely. The Privacy and Civil Liberties Oversight Board (PCLOB), which has been unwilling to seriously take on 702 violations, even suggested before Congress that some bare minimum of changes should be made to the surveillance programs in order to protect the privacy rights of Americans.

While we think it’s time for 702 to end entirely, and for any future programs to start from scratch in protecting the privacy of digital communications. EFF will continue to fight to make sure that any bill that does renew Section 702 closes the government’s warrantless access to U.S. communications, minimizes the amount of data collected, and increases transparency. Anything less than that would signal a continued indifference, or contempt, to our right to privacy.

This recent disclosure proves, in a Groundhog Day-like fashion, that the FBI is not going to suddenly become good at self-control when it comes to access to our data. If the privacy of our communications—including communications with people abroad—is going to actually matter, Section 702 must be irrevocably changed or jettisoned entirely.

Source: EFF

Matthew Guariglia is a policy analyst working on issues of surveillance and policing at the local, state, and federal level. He received a PhD in history at the University of Connecticut where his research focused on the intersection of race, immigration, U.S. imperialism, and policing in New York City. He is the co-editor of The Essential Kerner Commission Report (Liveright, 2021) and his book Police in the Empire City is forthcoming from Duke University Press and his bylines have appeared in NBC News, the Washington Post, Slate, Motherboard, and the Freedom of Information-centered outlet Muckrock. Matthew is an affiliated scholar at University of California, San Francisco School of Law and serves as an editor of “Disciplining the City,” a series on the history of urban policing and incarceration at the Urban History Association’s blog The Metropole.

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