OTI Joins 60 Groups, Companies, and Academics in Opposition to Controversial Senate Intelligence Authorization Act

New America's Open Technology Institute (OTI) joined 60 organizations, companies, civil society groups, and academic experts in a letter to the Senate to strongly oppose the the Intelligence Authorization Act for FY 2017 (S. 3017).  The bill includes two controversial provisions: The first, Section 603 of the Act, would limit the Privacy and Civil Liberties Oversight Board’s (PCLOB) jurisdiction to only consider Americans’ privacy when it considers the implications of U.S. surveillance. The second, Section 803, would expand the National Security Letter (NSL) authority by expanding the FBI’s ability to access information about Americans’ internet activities without a court order.  

PCLOB is an independent, bipartisan agency that is responsible for overseeing the privacy and civil liberty implications of US counterterrorism efforts. Section 603 would limit the jurisdiction of PCLOB so that it could only consider the privacy of U.S. persons. Most surveillance programs, whether they target Americans or people abroad, inevitably collect the communications of non-targets. This collection, deemed “incidental” by the Intelligence Community, is common in surveillance under Section 702 of the FISA Amendments Act and Executive Order (EO) 12333.  

PCLOB acknowledged the importance of considering the implications of “incidental collection” and of protecting the privacy of non-US persons, who can be disproportionately impacted by US surveillance. In its 2014 report on Section 702, it announced that its next report would assess EO 12333 surveillance, which targets people outside of the United States. The President also recognized the important role that PCLOB could play in protecting the privacy of all people across the world, regardless of their nationality and where they live, in the Presidential Policy Directive 28 (PPD-28).  

However, Section 603 would prevent PCLOB from engaging in this oversight because it would no longer be authorized to consider the rights of non-US persons when it conducts oversight and makes recommendations. This restriction would even prevent PCLOB from investigating claims that a U.S. agency collected the communications of non-U.S. individuals without a required court order, including communications of foreigners visiting for just a day, students here through an exchange program, and even those here on business trips.    

Section 603 may also cause economic harm for US companies and create diplomatic tension between the US and the European Union (EU). This is because it could undermine the nascent Privacy Shield agreement, which, if it goes into effect this summer, will govern the transfer of personal data between the U.S. and the EU. The Privacy Shield is the legal framework that will replace the Safe Harbor Agreement between the US and the EU, which was struck down by the European Union Court of Justice over concerns about Section 702 surveillance.

The Privacy Shield is the product of extensive negotiations. It is designed to ensure that the personal information of EU citizens will remain protected under EU standards when it is sent to the U.S. Negotiators agreed to various protections, including compliance monitoring by the Department of Commerce and assurances that PCLOB would oversee the use of surveillance authorities on non-U.S. persons. If Section 603 goes into effect, it would deny PCLOB the authority necessary to fulfill that promise.  

The other troubling provision of the Act, Section 803, would expand the FBI's surveillance authority by enabling it to demand records on Americans’ internet activities called electronic communications transactional records (ECTRs) using an NSL. This means that the FBI could access private information like who Americans email, chat, and text; web browsing history; and geolocational information, without court approval or oversight. That lack of oversight has led to an unrivaled pattern of abuse of NSL authorities. An amendment to a government funding bill that would have resulted in a similar expansion of surveillance authority was recently defeated, despite a litany of misrepresentations about what the FBI’s current powers are, and how it uses NSLs.

The provisions of this year’s Intelligence Authorization Act are so controversial that Senator Wyden (D-OR) put a procedural hold on the bill, which means that it cannot be taken up by the full Senate for debate and a vote unless the controversial provisions have been removed. This offers a temporary reprieve in the debate over FBI surveillance and PCLOB’s jurisdiction, but it may be a brief one. Another vote on the failed FBI surveillance amendment could be scheduled as soon as mid-July, and there is only one way to stop it: Americans must call their Senators and tell them they are opposed to it.