FISA Oversight Board Member Says Americans Need More Privacy Protections As Congress Debates Section 702 Reauthorization

One of the NSA's most powerful spying tools is up for renewal at the end of the year. The problem with this power isn't necessarily the NSA. I mean, the NSA has its problems, but the issue here is the domestic surveillance performed by the FBI via this executive power - something it shouldn't be doing but has almost always done.

The FBI is currently catching a lot of heat for its backdoor" access to US persons' data and communications, something it has shown little interest in controlling or tracking. Abuse is a regular occurrence and this abuse finally received some high profile attention after Congressional Republicans got bent out of shape because some of their own people ended up under the FBI's backdoor Section 702 microscope.

So, while there's some grandstanding going on, the underlying concerns do need to be addressed. And Democrats have only themselves to blame for allowing the FBI to continue to abuse the privilege. They re-upped the program right after Trump took office. That it's the Republicans complaining about surveillance abuses after banding together to ensure President Trump had this power is especially ironic. But let's not forget prominent Democrats who previously complained about surveillance abuses decided it was a good idea to vote in favor of an unaltered reauthorization.

Section 702 allows the NSA to perform upstream" collections of data and communications. It's foreign-facing but it also collects any communications between foreign targets and US persons. That's where the FBI steps in. It's only supposed to be able to access minimized data and communications, but these restrictions are often ignored by the agency.

With this power on the line, a member of the Privacy and Civil Liberties Oversight Board (PCLOB) is expressing his concern with the ongoing failure of the DOJ and FBI to get the FBI's abuse of this surveillance power under control.

The PCLOB was formed in the wake of the Snowden leaks to advocate on behalf of Americans and their rights. The PCLOB makes the court adversarial - something it always should have been (since Americans' rights are often implicated in surveillance requests) but never was.

Travis LeBlanc - who served in Obama's administration but was appointed to the PCLOB by President Trump - was interviewed by the Washington Post. And he says reauthorizing Section 702 without drastic alterations would be a mistake.

I do have concerns with a clean reauthorization," he said, and he believes the program needs common-sense protections that could be put in place to balance privacy and civil liberties with the national security interest."

Specifically, the program needs constraints on the FBI's access and use of the data collected by the NSA. For years, the FBI has abused its access to perform backdoor searches of Americans' data. And for years, it has been unable to explain why it can't stop violating minimization procedures and what, if anything, this unexpected, incidental" treasure trove contributes to its law enforcement work.

LeBlanc says it's time to add the Fourth Amendment back into the mix to put an end to this form of secondhand, warrantless surveillance.

LeBlanc also said that it is apparent we have reached a point where the massive number of U.S. queries, in particular, warrant the use of a prior court order before allowing any search of a Section 702 collection for U.S. persons information."

To that end, LeBlanc suggests a couple of changes. First, there's the court order requirement. Then Congress could limit the NSA's haystack-building apparatus by ending its about" variables, which allow it to also search for communications that merely mention certain individuals, rather than limiting collection to those actually communicating with the agency's targets. Finally, Congress should act to limit or forbid batch searches" of 702 collections by the FBI, preventing it from engaging in mass violations of the Fourth Amendment courts (so far) have ruled the government should never have to answer for.

If anyone can get this done, it's Congressional leaders motivated by personal animus and political grandstanding. An entire party is, at the moment, extremely angry at the FBI. Blatant self-interest may finally achieve what privacy advocates and activists have been seeking for several years. If the ends are going to justify the means, it may as well be these ends and those means. Some concern for the little people would be nice, but as an advocate of restricted surveillance powers, I'm willing to take what I can get.