Congress Take Note for Section 702 Debate – Government Requests for User Data Are Exploding

Bloomberg’s Annie Bang is reporting on new research commissioned by Swiss-based privacy company Proton. Over the last decade, the government has shown an increasing appetite for user data from companies like Apple, Alphabet, and Meta, with the number of requests increasing 770 percent.

That’s a lot – and it’s a bipartisan habit. As Proton’s Edward Shone told Bloomberg, “This isn’t a blue or red thing – this isn’t a sort of Trump or Biden or Obama thing. It has gone up consistently.”

And that massive increase is just in “standard” requests that are routinely disclosed. The number of requests balloons even more – nearly doubles, in fact – when requests made under the Foreign Intelligence Surveillance Act (FISA) are factored in.

Most of those FISA requests are likely warrantless – obtained via “backdoor” authority granted by the addition of Section 702 in 2008. Instead of being approved by judges, they are batched together and rubber-stamped – meaning no case is made, and there is no showing of probable cause. The Fourth Amendment is bypassed entirely.

Requests for Americans’ data, in just this one slice of the U.S. government’s digital surveillance, adds up to 6.7 million user accounts disclosed over an eleven-year period. It is little wonder, then, that Americans simply do not trust the government with their data.

As FISA and Section 702 come up for renewal this month, urge your representative in the House to support Rep. Andy Biggs’ Protect Liberty Act. Common-sense reforms like these would bring privacy guardrails to Section 702 that would prevent its continued (and obviously growing) abuse as a tool for agencies like the FBI to spy on American citizens without justification.

But the new research by Proton drives home the fact that this isn’t just an FBI problem – it’s a systemic, wide-ranging “government overreach” problem powered by technology. “In many ways, the U.S. government has effectively outsourced its surveillance to Big Tech companies and data brokers,” wrote Proton’s Richie Koch.

Big Tech offers, here and there, end-to-end encryption for users’ communications, from Signal to Apple’s iMessage. But encryption is far from a standard practice. As Elena Constantinescu wrote in describing Proton’s latest report, “Big Tech has repeatedly shown little interest in offering that kind of protection, let alone making it the default, across the services where people store their most sensitive information.” Case in point: Bloomberg noted that Meta just announced the removal of end-to-end encryption for Instagram chats.

Constantinescu is right that privacy begins with tech companies’ designs for their communication services. She writes: “Privacy is a matter of architecture, not just policy.”
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As the government demands more data, strong and ubiquitous encryption would create less data for government to request or access without a warrant. It is time for Silicon Valley to draw a new set of privacy-forward blueprints that start with a Fourth Amendment foundation.

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