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The End of the NSA's ‘About’ Searches Is Just the Beginning

DEEPLINKS BLOG
April 28, 2017

The NSA is stopping its use of one controversial surveillance technique that impacts Americans' privacy.

Make no mistake. This is good news for anyone who wants government surveillance to follow the law. But there’s much more to be done to rein in unconstitutional spying.

Initially reported by The New York Times today and confirmed by the agency itself, the NSA will no longer conduct “about” searches of the full content of Internet communications, including to and from innocent Americans, that are "about" -- or mention -- a foreign intelligence target’s email address or other identifier. The NSA said the changes were a result of “inadvertent compliance incidents,” or violations of court-imposed restrictions.

These searches happen as part of the NSA’s Upstream program, through which the agency taps directly into the Internet backbone to seize and search Internet traffic. The U.S. government has claimed these warrantless searches of Americans’ email are allowed under Section 702, enacted as part of the FISA Amendments Act, which is set to expire at the end of the year.

In the NSA’s own words:

“NSA will no longer collect certain internet communications that merely mention a foreign intelligence target. … Instead, NSA will limit such collection to internet communications that are sent directly to or from a foreign target.

Even though NSA does not have the ability at this time to stop collecting ‘about’ information without losing some other important data, the Agency will stop the practice to reduce the chance that it would acquire communications of U.S. persons or others who are not in direct contact with a foreign intelligence target.

Finally, even though the Agency was legally allowed to retain such ‘about’ information previously collected under Section 702, the NSA will delete the vast majority of its upstream Internet data to further protect the privacy of U.S. person communications.”

For nearly a decade, EFF has argued in court that these and other warrantless searches and seizures through Upstream are unconstitutional. Although today's announcement is a welcome one, the NSA has demonstrated, time and time again, that it will only institute meaningful reforms after it gets caught in serious and repeated violation of the law.

We demand better from our country’s intelligence community. With the looming sunset of Section 702, Congress is in the perfect position to demand more too, starting with a full and public explanation the scope of Section 702 surveillance, including the long-overdue accounting for how many Americans have been impacted by NSA surveillance.

When it comes to reforms, Congress should codify the changes the NSA announced today. If “about” searches are so privacy-invasive for innocent Americans, they should be explicitly prohibited by law.

But that’s not the only way Congress can work to reduce the risk of collecting information about innocent people. Lawmakers should also curtail surveillance programs under Section 702 including by limiting collection to information about true national security concerns instead of allowing the programs to collect the much broader category of “foreign intelligence information.” Lawmakers should also work to reduce “incidental collection,” or the collection of communications to and from Americans who interact with individuals located outside of the United States.

And that’s just on the intelligence collection side. Congress should limit what the intelligence community can do with information that has been collected under Section 702. One obvious move would be to close the “backdoor search loophole,” or the gap in privacy protections that allows the FBI to search for information about Americans in databases containing information collected under Section 702 without getting a warrant. Efforts to close this loophole have been widely supported on the Hill in the past and should be included in any reform package Congress considers this year.

Outside of what information is collected and how it’s used, lawmakers should push for increased transparency into and oversight of the intelligence community’s use of Section 702. That includes things like declassifying more information about the NSA’s surveillance programs, letting companies publish more specific information about the government requests they receive for customer data, and making it easier for Americans to bring lawsuits against the U.S. government if they feel their constitutional privacy protections have been violated.

The NSA’s announcement today is a win for constitutional privacy protections, for those of us fighting unlawful surveillance in the courts, and for anyone who pushed for surveillance reform by signing a petition, contacting their lawmakers, or otherwise voicing their concerns about warrantless spying on innocent Americans.

With the 702 reauthorization debate set to unfold in the coming weeks and months, we need to tell Congress to keep fighting to rein in this warrantless spying.

Take ActionTell Congress: Pull the Plug on Internet Spying Programs.

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