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We can finally end warrantless surveillance in the US

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Even though the Snowden leaks came out 10 years ago, the United States never ended its unconstitutional surveillance program. It now has a chance to close the legal loopholes that allow warrantless spying on US citizens. But Congress needs to act before the end of the year or we’ll lose our best chance in years.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the US government to spy on foreigners while also sweeping up “incidental” communications of its own citizens. It has been used to violate the privacy of millions of innocent Americans. The law will sunset at the end of 2023 unless it’s reauthorized for another four years. If it is reauthorized without significant reforms, US government surveillance abuses will continue unchecked.

This issue has inspired rare bipartisan agreement in Congress, with Democrats and Republicans pushing for reforms to protect privacy. Proton supports two bills that would put an end to the backdoor searches of US communications– the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act– and urges US citizens to speak out before it’s too late.

A brief history of Section 702

The Foreign Intelligence Service Act(new window) was passed in 1978 in response to President Nixon’s abuse of federal law enforcement and intelligence agencies to spy on political enemies. The law forbade intelligence agencies like the NSA and CIA from operating within the United States. It also established the Foreign Intelligence Service Court (FISC) to oversee government requests for surveillance warrants to prevent such abuses from occurring again.

However, in 2001, in the aftermath of the September 11 attacks, an executive order created the Terrorist Surveillance Program(new window), which gave the NSA broad authority to monitor electronic communications that originated outside the US without going before the FISC. This program continued until 2007, when the government relented to public pressure and again began seeking warrants from the FISC(new window)

Section 702 was introduced in the FISA Amendments Act of 2008. Its intent was to limit the type of warrantless surveillance that happened after 9/11, but it also eased the requirements for wiretapping under the original FISA. 

Under Section 702(new window), agencies like the NSA can monitor the communications of nearly any foreign national of interest that is “reasonably believed” to be outside the US, be they a terrorist, diplomat, journalist, etc., without seeking a warrant. However, these agencies cannot intentionally target the communications of a US citizen or US resident. 

Unfortunately, this limitation hasn’t protected Americans’ right to privacy. These agencies can simply name a foreign national as the ostensible target and then sweep up the communications of any Americans that that person has contacted. It was under the authority of Section 702 that the NSA established PRISM and Upstream(new window), the mass surveillance programs Edward Snowden(new window) exposed in 2013 and compelled us to create Proton Mail.

Even after PRISM was dismantled, the government has continued to use Section 702 to collect information(new window) it wouldn’t otherwise be able to gather without a warrant. According to the Brennan Center for Justice(new window), this has led to the surveillance of a US senator, a US state senator, and a US state judge, as well as current and former federal government officials, journalists, political commentators, and 19,000 donors to a congressional campaign. 

Mass surveillance harms us all

Ending this intrusive mass surveillance has built an unlikely bipartisan alliance of politicians in the US. Representatives and senators spanning the political spectrum, from Elizabeth Warren to Matt Gaetz, are refusing to renew Section 702 unless it comes with stringent new privacy protections for US citizens. 

At Proton, we welcome this broad, bipartisan support for reform in the US. We believe it has the potential to dramatically improve people’s right to privacy worldwide. We call for US lawmakers to make three key reforms to Section 702:

  • Protect Americans from warrantless backdoor searches, ensure foreign nationals aren’t targeted as a pretext for spying on the Americans with whom they are communicating, and prohibit the collection of US domestic communications.
  • Require warrants for any surveillance of Americans’ location data, web browsing, and search records.
  • Prohibit the government from purchasing Americans’ data from data brokers.

Members of Congress have proposed two bills that would significantly reform Section 702: the Government Surveillance Reform Act(new window) (S.3234(new window), H.R. 6262(new window)), sponsored by Senator Ron Wyden(new window) (D-OR) and Representative Warren Davidson (R-OH) and the Protect Liberty and End Warrantless Surveillance Act(new window), sponsored by Representative Andy Biggs(new window) (R-AZ). We support both of these bills.

We signed this open letter to Congress(new window) calling on policymakers to reform Section 702. Several tech companies joined us in this fight for online privacy, including Wikimedia, Mozilla, The Tor Project, and others.

Congressional leadership has been trying to reauthorize Section 702 without meaningful reforms by including it in the “must-pass” National Defense Authorization Act(new window) (NDAA). Some Section 702 advocates have called for a temporary reauthorization using the NDAA, but this would have the knock-on effect of allowing the intelligence community to continue using warrantless searches(new window) for years.

This cannot happen. We must not allow the US government to continue using Section 702 to violate Americans’ rights. Instead, Congress should use the NDAA as an opportunity to close the Big Brother loopholes.

If you’re a US voter, we invite you to contact your elected representative to tell them you oppose Section 702 reauthorization and support the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act. 

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Richie Koch(new window)

Prior to joining Proton, Richie spent several years working on tech solutions in the developing world. He joined the Proton team to advance the rights of online privacy and freedom.

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