For the past week my social feeds have been filled with a pretty important tech policy debate that I want to key you in on: the renewal of a controversial program of American surveillance.
The program, outlined in Section 702 of the Foreign Intelligence Surveillance Act (FISA), was created in 2008. It was designed to expand the power of US agencies to collect electronic “foreign intelligence information,” whether about spies, terrorists, or cybercriminals abroad, and to do so without a warrant.
Tech companies, in other words, are compelled to hand over communications records like phone calls, texts, and emails to US intelligence agencies including the FBI, CIA, and NSA. A lot of data about Americans who communicate with people internationally gets swept up in these searches. Critics say that is unconstitutional.
Despite a history of abuses by intelligence agencies, Section 702 was successfully renewed in both 2012 and 2017. The program, which has to be periodically renewed by Congress, is set to expire again at the end of December. But a broad group that transcends parties is calling for reforming the program, out of concern about the vast surveillance it enables. Here is what you need to know.
What do the critics of Section 702 say?
Of particular concern is that while the program intends to target people who aren’t Americans, a lot of data from US citizens gets swept up if they communicate with anyone abroad—and, again, this is without a warrant. The 2022 annual report on the program revealed that intelligence agencies ran searches on an estimated 3.4 million “US persons” during the previous year; that’s an unusually high number for the program, though the FBI attributed it to an uptick in investigations of Russia-based cybercrime that targeted US infrastructure. Critics have raised alarms about the ways the FBI has used the program to surveil Americans including Black Lives Matter activists and a member of Congress.
In a letter to Senate Majority Leader Chuck Schumer this week, over 25 civil society organizations, including the American Civil Liberties Union (ACLU), the Center for Democracy & Technology, and the Freedom of the Press Foundation, said they “strongly oppose even a short-term reauthorization of Section 702.”
Wikimedia, the foundation that runs Wikipedia, also opposes the program in its current form, saying it leaves international open-source projects vulnerable to surveillance. “Wikimedia projects are edited and governed by nearly 300,000 volunteers around the world who share free knowledge and serve billions of readers globally. Under Section 702, every interaction on these projects is currently subject to surveillance by the NSA,” says a spokesperson for the Wikimedia Foundation. “Research shows that online surveillance has a ‘chilling effect’ on Wikipedia users, who will engage in self-censorship to avoid the threat of governmental reprisals for accurately documenting or accessing certain kinds of information.”
And what about the proponents?
The main supporters of the program’s reauthorization are the intelligence agencies themselves, which say it enables them to gather critical information about foreign adversaries and online criminal activities like ransomware and cyberattacks.
In defense of the provision, FBI..