Section 702 of the Foreign Intelligence Surveillance Act is one of the most insidious and secretive mass surveillance authorities still in operation today.
The Security and Freedom Enhancement Act would make some much-needed and long fought-for reforms, but it also does not go nearly far enough to rein in a surveillance law that the federal government has abused time and time again.
While Section 702 was first sold as a tool necessary to stop foreign terrorists, it has since become clear that the government uses the communications it collects under this law as a domestic intelligence source.
The program was intended to collect communications of people outside of the United States, but because we live in an increasingly globalized world, the government retains a massive trove of communications between people overseas on U.S. persons.
The SAFE Act, like other reform bills introduced this Congress, attempts to roll back some of this warrantless surveillance.
It does not do as much as the Government Surveillance Reform Act, which EFF supported in November 2023.
All the while, those advocating for renewing Section 702 have toyed with as many talking points as they can-from cybercrime or human trafficking to drug smuggling, terrorism, oreven solidarity activism in the United States-to see what issue would scare people sufficiently enough to allow for a clean reauthorization of mass surveillance.
So let's break down the SAFE Act: what's good, what's bad, and what aspects of it might actually cause more harm in the future.
The SAFE Act would do at least two things that reform advocates have pressured Congress to include in any proposed bill to reauthorize Section 702.
The first and most important reform the bill would make is to require the government to obtain a warrant before accessing the content of communications for people in the United States.
Currently, relying on Section 702, the government vacuums up communications from all over the world, and a huge number of those intercepted communications are to or from US persons.
It is crucial to note that this does not stop the IC or law enforcement from querying to see if the government has collected communications from specific individuals under Section 702-it merely stops them from reading those communications without a warrant.
This speaks not only to the unfair bifurcation of rights between Americans and everyone else under much of our surveillance law, but also to the risks of allowing any large scale acquisition from data brokers at all.
The SAFE Act would require the government to minimize collection, search, and use of any Americans' data in these compilations, but it remains to be seen how effective these prohibitions will be.
The SAFE Act is missing a number of important reforms that we've called for-and which the Government Surveillance Reform Act would have addressed.
These reforms include ensuring that individuals harmed by warrantless surveillance are able to challenge it in court, both in civil lawsuits like those brought by EFF in the past, and in criminal cases where the government may seek to shield its use of Section 702 from defendants.
After nearly 14 years of Section 702 and countless court rulings slamming the courthouse door on such legal challenges, it's well past time to ensure that those harmed by Section 702 surveillance can have the opportunity to challenge it.
While there may often be good reason to protect the secrecy of FISA proceedings, unofficial disclosures about these proceedings has from the very beginning played an indispensable role in reforming uncontested abuses of surveillance authorities.
This bill has some real improvements, but it's nowhere near the surveillance reform we all deserve.
On the other hand, the IC and its allies in Congress continue to have significant leverage to push fake reform bills, so the SAFE Act may well be the best we're going to get.
This Cyber News was published on www.eff.org. Publication date: Fri, 15 Mar 2024 21:43:07 +0000