We've seen months of continued public confirmation that Americans’ privacy is being violated by surveillance under Section 702, and widespread criticism from civil society, activists, surveillance-skeptical bipartisan congressional committees, and even the overly timid Privacy and Civil Liberties Oversight Board. Now, a separate group of White House-appointed experts just flinched on renewing the law without reforms. It’s good to see even the White House signal that improvements are needed, but it was immediately undermined by the tininess of their proposed changes.
The White House might suddenly be willing to acknowledge that people in the U.S. are sick of having their digital communications harvested and accessible to domestic law enforcement without a warrant, but the review group’s proposed reforms are just a cheap political consolation prize that will do very little to restore the fundamental right to privacy that has been denied to people on U.S. soil who email or call friends or family abroad.
For example, the 42–page report recommends that the FBI no longer be allowed to search 702 databases when investigating non-national security related crimes. In its current iteration, the FBI is permitted to sift through international communications in hopes of finding evidence of a wide range of crimes in the U.S.-based side of digital conversations. By our rough, most generous calculation, that would eliminate only 0.01% of these so-called FBI backdoor searches (about 16/119,000 backdoor searches according to the latest intelligence community transparency report). We deserve more than these tiny baby steps.
Still, it’s a start, and should be a call to action for all of us to keep on the pressure. Despite pushback against the authority, the White House had signaled earlier this summer that it was going to strongly defend Section 702, including all of its more controversial domestic uses.
After a bipartisan panel of Congressional committee members signaled that they would be willing to let Section 702 sunset entirely, the White House appears to be slinking from its earlier commitment to unchanged mass surveillance in order to propose the smallest basic reforms imaginable. The report also recommends more training for FBI agents (as if that will change the FBI’s habit of breaking the law), a bit more transparency, attempting to create a “culture of compliance” within the FBI, and various other bureaucratic checks and balances that historically have meant very little to the operations of mass surveillance in the U.S.
This is not a time to let up. If this tiny step signals anything to us, it is that the White House and the intelligence community are getting nervous about the volume of our protests. Come December, we will not be satisfied by perfunctory reforms or research grants to study the harms of aimless surveillance programs. The White House flinched. That means we need to get louder.
Correction: An earlier version of this post may have led some readers to believe the Privacy and Civil Liberties Oversight Board issued this report. They did not, a separate group of experts issued it