United States of America: Issued Privacy and Civil Liberties Oversight Board Report on Section 702

On 28 September, the Privacy and Civil Liberties Oversight Board (PCLOB) issued its report on the surveillance program pursuant to section 702 of the Foreign Intelligence Surveillance Act of 2017 (FISA). The Act authorises the US government to "target non-US persons, reasonably believed to be located outside the United States, in order to collect foreign intelligence information" and is scheduled to terminate on 31 December 2023. By then, the US Congress has the options of reauthorising the Act, reauthorising it with a statutory amendment, or allowing the Act to expire. In its report, the PCLOB states that the United States (US) is safer with the Act in place, but it also poses privacy and civil liberties issues. By targeting non-US persons, communication and personal information of US citizens are also incidentally collected, and four different agencies receive the data. Through so-called queries, agencies such as the Federal Bureau of Investigation are able to search through the data, allowing for the identification of US persons. Because no new data about US citizens is collected through queries, this is legal under the current section 702. According to the PCLOB, this is especially problematic as the FBI uses data from queries to prosecute US citizens. In light of these issues, the PCLOB proposes 19 recommendations to authorise the Act with statutory amendment, for example, an individualised and particularised judicial review for US citizen queries or codification of the legitimate objectives for signals intelligence collection currently under an Executive Order.