After years of debate, Congress is about to waste a rare chance to ensure that the United States’ electronic surveillance programs appropriately balance national security interests with users’ privacy. Section 702 of the Foreign Intelligence Surveillance Act is set to expire in just a few days—which means that Congress’ window for improving the oversight and transparency of important intelligence programs is rapidly closing. If the Senate does not vote against cloture today, Congress will have squandered its last opportunity to effect real change on U.S. surveillance practices for the next six years.
Section 702 surveillance authorizes the programmatic targeting and collection of the electronic communications of non-U.S. persons located abroad. These programs were first disclosed to the public through leaks in 2013, and have been the subject of intense public debate in the intervening years.
{mosads}Unfortunately, the Senate is preparing to vote this week on a bill that would re-authorize Section 702 in a way that ignores the vigorous debates and concerns raised over the last five years. As passed by the House of Representatives last week, the FISA Amendments Reauthorization Act extends Section 702 for six years with minimal changes.
There are a number of improvements that Congress could consider as part of legislation to renew Section 702 that would better protect users’ privacy online and increase transparency and oversight of online surveillance—all without reducing the authority’s effectiveness as a counterterrorism tool. With an affirmative vote on cloture today, the Senate will effectively guarantee that these changes will not be considered.
First, Congress ought to narrow the type of information that can be collected under Section 702, and permanently end collection “about” a foreign intelligence target—which the NSA has already halted for inadequately protecting user privacy. Second, Congress should require judicial oversight for searches of Americans’ communications collected incidentally—as non-U.S. persons are the primary target of 702 surveillance. Finally, in the interest of improved transparency and oversight, Congress should increase the detail with which private companies can disclose the number and type of government requests they receive, permit additional declassification of FISA court orders, and require more reporting on how U.S. persons’ communications are queried and used by the government.
The FISA Amendments Reauthorization Act currently before the Senate accomplishes none of these things. But it doesn’t have to be this way. Bipartisan members of the House and Senate have offered two bills that would go a long way towards improving the protections and oversight surrounding Section 702 surveillance.
Regrettably, the Senate is set to begin floor debate without considering either of those balanced bills as amendments or alternatives. Unless the Senate rejects cloture for the House-passed FISA Reauthorization Amendments Act this afternoon, Section 702’s electronic surveillance programs will proceed largely unchanged for the next six years.
Congress does not often get the opportunity to examine the scope and effectiveness of the United States’ online intelligence gathering tools. Given the breadth and impact of these surveillance programs on Internet users worldwide, it is imperative that Congress should provide clear-eyed scrutiny when it has the chance, and implement reforms when it sees the need.
If the Senate votes to pass the FISA Amendments Reauthorization Act this week, Congress will have abdicated its responsibility to exercise real, robust oversight of the powerful electronic surveillance tools our government has as its disposal. Instead, the Senate should vote against cloture today, so that it can ensure that the government exercises its surveillance powers with respect for the rights of Internet users worldwide.
Ed Black is President and CEO of the Computer & Communications Industry Association.