Defenders of the surveillance status quo argue that the FBI and other agencies must be allowed to perform warrantless “defensive surveillance” of Americans’ communications to defend us against foreign cyberattacks. Civil libertarians respond that there is no “defensive exception” in the Fourth Amendment of the U.S. Constitution, which requires probable cause warrants before our communications can be monitored.
Left out of this debate, until now, is the practical effect of removing warrantless defensive surveillance. Do actual cyber experts agree that it would be a disaster?
Now, thanks to Tim Starks of The Washington Post, we know the answer to that question. The Post conducted a survey of “a group of high-level digital security experts from across government, the private sector and security research community.”
That survey asked these experts what Congress should do about Section 702 of the Foreign Intelligence Surveillance Act, the authority that enables the surveillance of foreigners on foreign soil, but which federal agencies have used to eavesdrop on Americans’ communications without a warrant. They asked:
Should Congress not reauthorize Section 702 this year, allowing this authority to expire? Or reauthorize it without changes? Or make changes to the law as the price of reauthorization?
Only 16 percent of respondents said that privacy violations under Section 702 justify scrapping the authority entirely. These respondents include the highly respected Sascha Meinrath of The X-Lab think tank.
“Antiquated frameworks like Section 702 have led to rampant unconstitutional surveillance of millions of innocent Americans,” The Post quoted Meinrath. “Section 702 does not function as intended and needs to be sunset in favor of a completely new surveillance-oversight framework that ensures meaningful transparency to Congress and individual accountability for violating the law.”
An opposite view comes from the leaders of federal law enforcement and intelligence agencies that Section 702 should be reauthorized without any changes. Only 20 percent of the cyber experts agreed with this position.
The rest – 64 percent – responded that Section 702 should be reauthorized with some changes. Some worried that the current form of Section 702 could gum up U.S. negotiations with the EU to secure a data privacy agreement. But many respondents advocate adding a warrant requirement when querying Americans’ communications.
Imagine that: requiring a federal statute to adhere to the Fourth Amendment of the U.S. Constitution. More than six out of ten cyber experts agree!