Civil Liberties Advocates’ Statement onPCLOB Section 702 Report
September 28, 2023
Today, the Privacy and Civil Liberties Oversight Board (PCLOB) issued its long-awaited reporton Section 702 of the Foreign Intelligence Surveillance Act. The report, endorsed by a majorityof the Board’s members, sheds new light on abuses over the past few years, revealing that, “[i]nthe reporting period covering November 2020 to December 2021, non-compliant queries related
to civil unrest numbered in the tens of thousands.”
The report includes recommendations that Congress enact robust reforms as part of any
reauthorization of Section 702. Among other reforms, it urges Congress to (1) require thegovernment to obtain individualized judicial approval to access communications retrieved
through U.S. person queries (commonly known as “backdoor searches”), with exceptions forconsent and exigent circumstances; (2) codify President Biden’s executive order specifying thelegitimate objectives of surveillance; (3) improve the workings of the FISA Court, including bystrengthening the role of amici; (4) prohibit the government from re-starting “abouts” collection;and (5) impose a deadline for declassifying significant FISA Court opinions.
Privacy, civil rights, and civil liberties groups issued the following statement responding to thereport:“The message of the Board’s report is clear: individualized judicial review of U.S. person queriesis critical to protect Americans’ rights and prevent further abuses. The report flatly rejects thegovernment’s self-serving claim that individualized judicial review is unworkable. It also rejects
the baseless notion that broad categories of these searches, such as searches for foreign
intelligence or so-called ‘defensive’ searches for potential victims’ information, should be
exempted from this requirement. And it rejects the fallacy that the FBI’s tweaks to its internal
procedures are sufficient to address the acute risks posed by backdoor searches.
“Three members of the Board stated that they would support a probable cause standard for U.S.
person queries in any criminal investigation, including those related to foreign intelligence. In herstatement, the Chair of the Board compellingly explained why the full ‘probable cause’ standard
is required by the Fourth Amendment and necessary to safeguard Americans’ privacy. We
believe the same logic supports a requirement for a probable cause order for any U.S. personquery.
“We note that the Board limited its inquiry and its recommendations to Section 702. It did not
address many of the other issues that are very much part of the current debate, including thegovernment’s use of data brokers to circumvent legal protections for Americans’ privacy and theuse of overseas surveillance to collect Americans’ information without statutory authority orjudicial oversight. Congress, however, must address these issues. If it limits itself to reforms ofSection 702, the government will simply continue its warrantless surveillance of Americans
using these other methods.”
More than thirty organizations from across the political spectrum have called for a range ofreforms as a precondition for any reauthorization of Section 702. Those reforms include:
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Requiring the government to obtain a warrant before searching the content ofAmericans’ communications collected under intelligence authorities;
Establishing legislative safeguards for surveillance affecting Americans that is conducted
overseas under Executive Order 12333–an authority that raises many of the same
concerns as Section 702, as previously noted by PCLOB members;
Closing the data broker loophole, through which intelligence and law enforcement
agencies purchase Americans’ sensitive location, internet, and other data without any
legal process or accountability;
Bolstering judicial review in FISA-related proceedings, including by shoring up thegovernment’s obligation to give notice when information derived from FISA is usedagainst a person accused of a crime; andCodifying reasonable limits on the scope of intelligence surveillance.

Statement above attributable to the following organizations:
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American Civil Liberties Union
Brennan Center for Justice at NYU School of Law
Center for Democracy & Technology
Defending Rights & Dissent
Demand Progress
Due Process InstituteElectronic Information Privacy Center (EPIC)
Freedom of the Press Foundation
FreedomWorks
New America’s Open Technology InstituteProject On Government Oversight
Restore the Fourth