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A controversial US surveillance program is up for renewal. Critics are speaking out.

Here's what you need to know.

November 20, 2023
a security monitor showing the US Capitol building with a "Smile. You are on camera" sign in front of it
Stephanie Arnett/MITTR | Envato

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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 director Christopher Wray has also pointed to procedural changes at the bureau in recent years that have reduced the number of Americans being surveilled from 3.4 million in 2021 to 200,000 in 2022. 

The Biden administration has also broadly pushed for the reauthorization of Section 702 without reform.  

“Section 702 is a necessary instrument within the intelligence community, leveraging the United States’ global telecommunication footprint through legal and court-approved means,” says Sabine Neschke, a senior policy analyst at the Bipartisan Policy Center. “Ultimately, Congress must strike a balance between ensuring national security and safeguarding individual rights.”

What would reform look like?

The proposal to reform the program, called the Government Surveillance Reform Act, was announced last week and focuses on narrowing the government’s authority to collect information on US citizens.

It would require warrants to collect Americans’ location data and web browsing or search records under the program and documentation that the queries were “reasonably likely to retrieve foreign intelligence information.” In a hearing before the House Committee on Homeland Security on Wednesday, Wray said that a warrant requirement would be a “significant blow” to the program, calling it a “de facto ban.”

Senator Ron Wyden, who cosponsored the reform bill and sits on the Senate Select Committee on Intelligence, has said he won’t vote to renew the program unless some of its powers are curbed. “Congress must have a real debate about reforming warrantless government surveillance of Americans,” Wyden said in a statement to MIT Technology Review. “Therefore, the administration and congressional leaders should listen to the overwhelming bipartisan coalition that supports adopting common-sense protections for Americans’ privacy and extending key national security authorities at the same time.”

The reform bill does not, as some civil society groups had hoped, limit the government’s powers for surveillance of people outside of the US. 

While it’s not yet clear whether these reforms will pass, intelligence agencies have never faced such a broad, bipartisan coalition of opponents. As for what happens next, we’ll have to wait and see. 

What else I'm reading

  • Here’s a great story from the New Yorker about how facial recognition searches can lead police to ignore other pieces of an investigation. 
  • I loved this excerpt of Broken Code, a new book from reporter Jeff Horwitz, who broke the Facebook Files revealed by whistleblower Frances Haugen. It’s a nice insidery look at the company’s AI strategy. 
  • Meta says that age verification requirements, such as those being proposed by child online safety bills, should be up to app stores like Apple’s and Google’s. It’s an interesting stance that the company says would help take the burden off individual websites to comply with the new regulations. 

What I learned this week

Some researchers and technologists have been calling for new and more precise language around artificial intelligence. This week, Google DeepMind released a paper outlining different levels of artificial general intelligence, often referred to as AGI, as my colleague Will Douglas Heaven reports.

“The team outlines five ascending levels of AGI: emerging (which in their view includes cutting-edge chatbots like ChatGPT and Bard), competent, expert, virtuoso, and superhuman (performing a wide range of tasks better than all humans, including tasks humans cannot do at all, such as decoding other people’s thoughts, predicting future events, and talking to animals),” Will writes. “They note that no level beyond emerging AGI has been achieved.” We’ll certainly be hearing more about what words we should use when referring to AI in the future.

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