As the reauthorization deadline for Section 702 of the Foreign Intelligence Surveillance Act (FISA) approaches, a critical national discussion awaits. These authorities, portrayed by multiple administrations of both parties as integral to U.S. government surveillance capabilities, have been a divisive topic. The December 31, 2023, sunset date provides an opportunity to reassess the equilibrium between civil liberties and national security imperatives. The deliberations over the remaining months of this year could see long-awaited changes to this aspect of U.S. surveillance policy.
As U.S.-based companies that provide consumer and enterprise technology, products, and services around the world, RGS appreciates the significant reforms the intelligence community has adopted with respect to its foreign intelligence practices in the last year. We are also grateful for the robust oversight bipartisan lawmakers have undertaken as Congress considers renewing Section 702 of FISA (50 U.S.C. 1881a; “Section 702”), including possible amendments. RGS has supported past FISA reform efforts and is supportive of continued improvements to Section 702.
Among the proposed changes to Section 702, RGS recommends key improvements related to the collection of data, transparency and amici participation, and retention of data. Three of these recommendations – codifying EO 14086 provisions, increasing amici participation at the FISC, and codifying the current ban against “abouts” collection – are also recommendations made by the Privacy and Civil Liberties Oversight Board (PCLOB) in its recently released report on Section 702. These improvements would protect the Fourth Amendment rights of American citizens and increase privacy protections for the people who use our services across the globe. Collection: Reauthorization legislation should statutorily codify recent changes already implemented through Executive Order 14086, including both the list of “legitimate objectives” for SIGINT collection, and the shorter list of prohibited uses. Furthermore, we would encourage amending the statute to permanently ban “abouts” collection, in conformance with current practice. These amendments would codify changes already embraced by the U.S. government with the imprimatur of the Foreign Intelligence Surveillance Court (FISC) to reassure all those who use our services of protections under US law. Transparency and Amici Participation: Americans would benefit from additional transparency surrounding the government’s use of national security authorities, including Section 702. For example, RGS supports greater amici participation in FISA court proceedings as well as requiring the government to report general information on the number and type of legal demands it seeks. Additionally, RGS supports reforms to strengthen the declassification review process, which would result in further declassification of FISC documents.
Similarly, companies should be allowed to report, with greater granularity, the volume of national security demands they receive. At the moment, companies are only able to report, on a six month delay, the number of FISA requests and national security letters they receive and the number of user accounts those demands reference in bands that vary between 250-1000. The changes should also include narrowing the bands regarding permissible reporting and removing the bands altogether after a certain threshold is met, consistent with national security.
Importantly, changes should allow for reporting to distinguish between a company’s different types of services and customers, which can vary significantly across a company’s many diverse offerings and allow more high-level granularity with respect to the location of targeted users. Retention: Data collected under Section 702 should be purged after three, rather than the current five, years of retention with limited exceptions. This minimization effort would help ensure that information, particularly personal information, is only retained for as long as necessary to fulfill a national security purpose.