PCLOB Chair Ups Ante by Calling for Probable Cause Warrant for U.S. Person Queries
What are the topline takeaways from the report from the Privacy and Civil Liberties Oversight Board (PCLOB) on Section 702 of the Foreign Intelligence Surveillance Act (FISA)?
A majority of board members of this government watchdog panel directly counter the claims of the Biden Administration and the intelligence community that a requirement for the government to seek judicial review of the private communications of Americans would be “operationally unworkable” and lead to extreme danger to national security. The report punctures the FBI’s frequent claims that having the ability to rifle through Americans’ communications without a warrant is essential to national security and protecting the United States from harm.
The PCLOB majority endorses “individualized and particularized judicial review” by the FISA Court before the government can review data of U.S. citizens and legal residents.
PCLOB is coming down firmly on the side of civil liberties organizations that have long argued against intelligence and law enforcement agencies being allowed to have ready access to Americans’ private data and communications, with little judicial oversight.
Internal FBI Procedures Insufficient
The PCLOB majority finds the internal changes by the FBI in its Section 702 procedures to be far less than what is needed to protect Americans from backdoor searches, the practice of using secretly derived information to develop a case. Moreover, these searches are generally useless, as are the FBI’s internal procedures. The report also rejects that broad categories of searches, such as so-called “defensive” searches for potential victims’ information, should be exempted from judicial review.
Amici, Abouts and Unmasking
The report endorses the proposal to require amici – or qualified civil liberties experts to advise the FISA Court whenever proposed investigations touch sensitive cases that implicate basic constitutional rights. The board would narrow the standards by which the government selects targets. And the board would formally restrict “abouts” collection – information in which a target is merely mentioned.
Even the two board members who voted against the report found that “The U.S. Intelligence Community should adopt new rules to protect against the unmasking of U.S. Persons for political purposes.”
The Chair’s Call for a Warrant Requirement
Chair Sharon Bradford Franklin (see p. 226) writes that a “search through Section 702 communications data seeking information about a particular American constitutes a search under the Fourth Amendment, and current query standards are insufficient to meet constitutional requirements.”
Chair Franklin notes that the FBI routinely runs searches of U.S. persons at a preliminary stages of an inquiry. The FBI “asserted that it could not meet a probable cause standard for such queries conducted at these early stages.” Nor could the FBI identify, outside the categories of “victim” or “defensive” queries, “a single criminal prosecution that relied on evidence identified through a U.S. person query.”
Chair Franklin raises the ante on PCLOB’s recommendation that a FISA Court provide judicial review for U.S. person queries.
“But I believe that Congress should also require a probable cause standard for FBI’s U.S. person queries conducted at least in part to seek evidence of a crime in order to fully protect Americans’ privacy and civil liberties.”
Franklin writes that this is the only way to ensure such queries fully comply with the Fourth Amendment, while being consistent with criminal law in other contexts. She would explicitly adopt the standards of Carpenter v. United States (2018), in which the U.S. Supreme Court held that the police don’t need a warrant to seize a cellphone but do need a warrant to search the contents of that cellphone, which contain “the privacies of life.” She analogizes this case to the “seizure” of the incidental collection of Americans’ information under Section 702, and the need to have a warrant to search it.
Chair Franklin’s conclusions, and the PCLOB’s full list of 19 recommendations, are included in the executive summary of its report.