On April 11, TCP filed public comments with the Privacy and Civil Liberties Oversight Board on the operation of NSA surveillance programs under Section 702 of the Foreign Intelligence Surveillance Act. Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. No one inside the United States, and no U.S. citizens currently in or out of the country, may be “intentionally” targeted under the law.
However, media reports about documents obtained from former government security contractor Edward Snowden, recently declassified opinions of the secret FISA Court, and the testimony of government officials themselves strongly suggest that surveillance conducted by the National Security Agency as part of its PRISM and upstream collection programs goes well beyond these limits. In fact, foreign intelligence surveillance under these programs authorized by Section 702 involves warrantless searches of tens of thousands of communications to which U.S. citizens and residents are a party in clear violation of the Fourth Amendment. PRISM directly collects data stored by internet service providers, while upstream collection involves the acquisition of internet communications as they travel over fiber optic cables from one data center to another.
In its comments, TCP said the NSA makes presumptions that err on the side of expanding the scope of its data collection, increasing the risk of “incidental collection” of U.S. person communications. For example, to intentionally target a person for surveillance, an NSA analyst need have only 51% confidence that the target is a foreign national. And in the absence of actual knowledge as to whether a target is a U.S. person or is in the United States, NSA presumes that person to be a non-U.S. person unless the person can be positively identified otherwise. Moreover, NSA’s overly broad definition of “foreign intelligence” results in the collection of massive amounts of data with only a remote connection to the underlying purpose for which the law authorizes data collection.
TCP urged the PCLOB to recommend a narrower definition of “foreign intelligence” that would eliminate collection of communications under Section 702 that have no relevance to national security risks. It asked the PCLOB to recommend tighter standards for purging data collected “incidentally” under Section 702 that affects U.S. persons and foreign nationals who are not legitimate targets. And it asked PCLOB to recommend an end to warrantless searches of Americans’ communications for any purpose other than a life-threatening emergency. TCP also urged the PCLOB to recommend more transparency and oversight of any aspects of the programs that remain secret.
The comments filed with the PCLOB reaffirm TCP’s policy position that national security programs must cease to operate outside of the Fourth Amendment’s safeguards. The PCLOB is expected to release its report and recommendations on the Section 702 programs later in the year.