Section 702, a surveillance authority initially provided in the 2007 Protect America Act, has increasingly been implemented in ways that diverge from its original legislative intent, according to Philip Kiko, former Chief of Staff and General Counsel of the House Judiciary Committee. Action is urgently needed to bring the enforcement of these laws back in line with their originally conceived principles.
Section 702 allows intelligence agencies to obtain court approval to conduct comprehensive surveillance of foreign communications transiting the US. However, recent reports suggest that the authority is being used far more broadly than it was ever intended, prompting Kiko, who played a key role in drafting and negotiating these laws, to express serious concerns.
Reports, including a Center for Democracy and Technology (CDT) issue brief, document numerous instances of misuse of the Section 702 authority, including the FBI conducting hundreds of thousands of searches of the communications of US citizens, with at least 2% of those searches deemed improper.
What’s more, the intelligence community’s demonstrated examples for renewing or expanding Section 702 seem to have drifted from the priority intelligence needs that were initially used to justify the law. This includes using the authority to conduct surveillance on members of Congress, campaign donors, local political parties, and a sweeping range of protestors.
Kiko suggests that a change in institutional culture and safeguards within the intelligence community, coupled with the intelligence agencies’ acknowledgment of errors in only limited technocratic terms, are aggravating public mistrust. He warns that we are compromising the delicate safeguards placed by Congress to guard civil liberties and the fundamental freedoms guaranteed by the Constitution.
The intelligence community needs to understand its problematic behavior, says Kiko, before any renewal of Section 702 can be considered. Reforms are needed along with proactive steps to address indiscreet use of data on everyday activities of Americans collected by private data brokers. For Kiko, oversight must be carried out by democratically elected Congress and Intelligence and Judiciary Committees, not by intelligence agencies themselves. The leash needs to be on the intelligence community, not the other way around.
Section 702, which includes provision for regular reviews or ‘sunsets’ to ensure compliance, must only be renewed following a full and fair debate and the express consent of people’s elected representatives. While reform is essential, it can only be achieved when Congress does its job in thoroughly scrutinizing and controlling intelligence programs.
Philip Kiko guided and helped draft the original Patriot Act from 2001-2007. He significantly contributed to drafting and overseeing intelligence, and FISA and surveillance authorities.