Section 702 of the Foreign Intelligence Surveillance Act is a valuable tool for national defense, but actions need to be taken to ensure the protection of US citizens’ 1st amendment, 4th amendment, 5th amendment, and 14th amendment rights. I believe that this proposal would be able to help ensure those rights, without removing the teeth from federal agencies in counter terrorism and cyber attack prevention.
Here is a good basics document about Section 702: https://www.dni.gov/files/icotr/Section702-Basics-Infographic.pdf
The FBI and other intelligence agencies have been improving with their compliance related to Section 702 information, but according to numbers published by the FBI and the Director of National Intelligence Report, the FBI alone has completed 1,142 non-complaint Section 702 queries this year alone. (assuming 98% compliance rate published by the FBI in October, and 57,094 queries about US citizens performed by the FBI, published by the DNI Report)
I’ve organized my ideas on possible solutions below, but I am by no means an expert, and other people’s point of view would be awesome.
(Also i guess people reported this as spam?)
Proposal
1. Warrant Requirements
- Require warrants for agencies to query information that is incidentally collected about US citizens
- Allow agencies to continue under current standards in FISC court for terrorist investigations, cybersecurity investigations, and espionage investigations.
- Require warrants for agencies to purchase information from data brokers about US citizens.
2. Data Storage
- Limit the amount of time (years) that the government can store information on US citizens that it incidentally collects through Section 702 related surveillance.
3. Increased Transparency
- Require the following information to be published publicly
- How many US citizens’ information is collected under Section 702 related surveillance
- How many queries that involve US citizens information are performed.
- How many non-compliant Section 702 searches are performed
- Agencies involved in non-compliant Section 702 searches
- The high level reasons as to why the searches were non-compliant
- Regularly publish anonymized reports on Section 702 compliance, detailing findings, non-compliance trends, and corrective actions taken.
- Create public-facing resources that help citizens understand their privacy rights and the limitations of Section 702.
4. Increased Accountability
- Notify US citizens whose information was revealed in a non-compliant Section 702 (when the notification would not compromise an ongoing investigation)
- Provide a formal apology
- Provide appropriate compensation
- Codify the internal rules that improved the FBI’s Section 702 compliance rate since 2017
- Require more external oversight, rather than trusting agencies with internal oversight.
- Grow the role of independent FISC advisors (Amici Curiae)
- Require the supervision of Amici Curiae for cases using Section 702 information that involves US citizens (for any actions involving Section 702 searches or the FISC)
- Increase the number of Amici Curiae (with diversity in expertise)
- Allow Amici Curiae to challenge/appeal FISC decisions for reasons involving constitutional rights
- Equip the Privacy and Civil Liberties Oversight Board for proper oversight
- Increase funding
- Give the PCLOB easier access to the information it needs to properly oversee Section 702 queries and compliance
- Provide the PCLOB with the authority to enforce compliance measures or recommend corrective actions would enhance its ability to address non-compliance issues directly.
- Grow the role of independent FISC advisors (Amici Curiae)
How it supports your rights
First Amendment Rights - Freedom of Speech, Religion, Press, Assembly, and Petition
- Publicly disclosing how many U.S. citizens’ data is collected, how it’s used, and what oversight exists can help reduce the effect that secretive surveillance often has on free expression and association.
- Helping further educate citizens on their privacy rights can help increase peoples confidence to express their 1st amendment rights.
- The warrant requirements help ensure that government agencies cannot easily access information about journalists’ communications or their sources without judicial oversight. This reinforces confidentiality for journalists’ sources, especially those who may provide information about government misconduct.
Fourth Amendment Rights - Protection Against Unreasonable Searches and Seizures
- Requiring warrants to query information about U.S. citizens that is incidentally collected reinforces the Fourth Amendment by ensuring government access to such data is legally justified.
- Limiting how long data on citizens can be stored aligns with Fourth Amendment principles by stopping the indefinite retention of data.
Fifth Amendment Rights - Due Process
- Notifying citizens when their information has been accessed through non-compliant searches aligns with due process by making the government accountable for unauthorized actions.
- Providing formal apologies and appropriate compensation offers recourse for citizens whose privacy rights were violated, fulfilling the Fifth Amendment’s guarantee of due process by addressing harms from the improper use of surveillance.
Fourteenth Amendment Rights - Equal Protection and Due Process
- Expanding the role of outside oversight ensures that surveillance laws are applied fairly and consistently, protecting everyone equally. Independent oversight ensures that surveillance practices do not disproportionately impact any particular group, which supports equal protection under the law.
- Publishing anonymized, detailed reports on compliance and non-compliance trends helps protect the rights of all citizens by holding agencies accountable for fair treatment, minimizing selective or biased applications of surveillance.
- By creating accessible resources on surveillance practices and privacy rights, the government enables all citizens to understand and assert their protections equally, supporting the Fourteenth Amendment’s commitment to equal protection and due process.