Sharon Bradford, PCLOB Chair, and Stephanie Pell, Lawfare Senior Editor, discuss areas of agreement and disagreement on FISA Sec. 702, compliance problems at the FBI, and different recommendations. They also explore privacy risks, misuse of intelligence authorities, and the need for DOJ orders. Other topics include the framework of intelligence community's collection, incidental collection compliance issues, and measures to improve compliance processes at the FBI.
Section 702 has been highly valuable in protecting the US from terrorism and cyber attacks, and offers unique collection capabilities that would be hard to replicate.
The podcast identifies compliance problems with Section 702, particularly at the FBI, and recommends strengthening internal compliance processes, conducting annual reviews, and implementing secure automated review and machine learning.
Deep dives
Overview of the podcast episode
In this episode of the Lawfare podcast, the Privacy and Civil Liberties Oversight Board (PICLOB) releases its report on FISA Section 702, a surveillance authority that is set to expire if not reauthorized by Congress. The report is supported by three out of five members, with the minority members issuing their own separate statement. The podcast features a discussion with four members of the PICLOB, focusing on areas of agreement, compliance problems at the FBI, and different recommendations to address the compliance issues. The episode also touches on the risks and benefits of Section 702, the value of incidental collection, and the need for significant reforms at the FBI.
Key Points: Agreement on the Value and Capabilities of Section 702
The podcast highlights areas of agreement among the PICLOB members, such as the recognition that Section 702 has been highly valuable in protecting the United States from various threats, including terrorism and cyber attacks. They also agree that Section 702 offers unique collection capabilities that would be difficult to replicate. Additionally, all members express the belief that the US is safer with Section 702 in place.
Key Points: Compliance Problems and Recommendations
The podcast delves into the compliance problems associated with Section 702, particularly regarding US person queries, primarily at the FBI. Members raise concerns about non-compliant queries conducted by the FBI, including searches of individuals associated with civil unrest and protest activities. The episode discusses recommendations for improving compliance, such as strengthening internal compliance processes at the FBI, conducting annual compliance reviews at field offices, and exploring secure automated review and machine learning. The members also acknowledge the need for cultural and organizational changes to foster a stronger privacy and civil liberties approach within the FBI.
Insights: Incidental Collection and Estimating Scope
The podcast explores the concept of incidental collection within Section 702 and the challenges in estimating the number of US persons whose communications are incidentally collected. Members discuss the potential privacy risks and the importance of preventing misuse of intelligence authorities. While there is disagreement on whether estimated numbers should be pursued, the members recognize the need for more robust safeguards and additional information to inform policymaking and further protect privacy.
On September 28, the Privacy and Civil Liberties Oversight Board, or PCLOB, issued its long-awaited report on FISA Sec. 702, a surveillance authority that is set to expire on December 31 if it is not reauthorized by Congress. The report was supported by only three members of the Board, with the two minority members issuing their own separate statement. The three-two split was along party lines.
Lawfare Senior Editor Stephanie Pell sat down with four members of PCLOB, the Chair, Sharon Bradford Franklin, and board members Travis LeBlanc, Beth Williams, and Richard DiZinno. Board member Ed Felten could not join due to medical reasons. In this first of two episodes, they talk about areas on which the members substantially agree, the compliance problems that have plagued the FBI, and each side’s different recommendations for how to address those compliance problems. In tomorrow’s podcast, they talk about the members’ views on the privacy and civil liberties risks posed by Section 702, and each side’s differing recommendations for how to address these issues, with a special focus on the recommendation that is the most serious point of contention among the two sides.