Cybersecurity Policy Report, ACLU Sues to Get Records About Surveillance Law Set for Renewal, (Feb 3, 2023)

By Tom Leithauser

The American Civil Liberties Union today asked a federal court to order four national security agencies to release records related to the agencies' use of the Foreign Intelligence Surveillance Act (FISA) in advance of a congressional debate over whether a key provision of FISA should be renewed before it expires at year-end.

In American Civil Liberties Union et al. v. National Security Agency et al. (no. 23-cv-907) filed in U.S. District Court for the Southern District of New York, the ACLU notes that it filed a Freedom of Information Act (FoIA) request in December seeking opinions issued by the Foreign Intelligence Surveillance Court (FISC) related to the agencies' use of FISA section 702.

The National Security Agency, Office of the Director of National Intelligence, Central Intelligence Agency, and Department of Justice acknowledged the requests but failed to provide records—or explain why the records should be withheld—within the 20 days required under FoIA.

"Section 702 authorizes the widespread collection of Americans' international communications without a warrant," the ACLU said. "While this surveillance is ostensibly 'targeted' at foreigners located overseas, the government uses this authority to acquire the internet communications and phone calls of Americans who are in contact with hundreds of thousands of foreign targets."

"The statute is extraordinarily permissive. It allows agency analysts to collect the communications of any non-U.S. person abroad where a 'significant purpose' is to acquire 'foreign intelligence,' a broad and elastic category," it said. "In practice, the government uses this authority to seize and search the communications of Americans and others on an immense scale."

The FISC, which reviews agencies' requests to conduct FISA surveillance, "has been examining novel or significant issues related to the government's Section 702 applications since at least late 2020," the ACLU asserted.

"The opinions issued by the FISC as a result of this review have not been released to the public—notwithstanding a statutory requirement that the government publicly release 'to the greatest extent practicable' FISC opinions addressing novel or significant issues," it said.

"Without access to these opinions, the public has no insight into the kinds of novel surveillance Defendants are seeking to conduct under Section 702, the impact that surveillance may have on the rights and civil liberties of Americans if Section 702 is reauthorized, and the reforms that may be required to safeguard Americans' privacy. This information is vital for the public and legislative debate that is already getting underway," the ACLU said.

The agencies have 30 days to respond to the lawsuit.

Section 702 was reauthorized in 2018 following robust congressional debate and is set to sunset at year-end. The debate over whether it should be reauthorized or amended has already begun. The Privacy and Civil Liberties Oversight Board (PCLOB), an independent entity that advises the White House on privacy and civil liberties matters, recently hosted an event to discuss section 702 and said it would issue a report on the use of section 702 in coming months (CPR, Jan. 12).

At the PCLOB event, Paul Nakasone, director of the National Security Agency and commander of U.S. Cyber Command, described section 702 as an irreplaceable statute that protects the U.S. from overseas threats.

But Sharon Bradford Franklin, the PCLOB's chair, noted that civil liberties concerns had been raised about the government's use of section 702 and that U.S. surveillance practices had contributed to distrust both in the U.S. and abroad, with implications for U.S. companies seeking to do business abroad.

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