US Congress Must Reform FISA Section 702 Now to Protect Wikipedia and its Users
Update (8 November 2023) from Stan Adams, Lead Public Policy Specialist for North America at the Wikimedia Foundation:
In light of the history of unconstitutional spying by unaccountable US government agencies under FISA Section 702, the Wikimedia Foundation welcomes the strong legislative reform proposals included in the Government Surveillance Reform Act (GSRA).
The GSRA was introduced on 7 November, 2023, by Senators Wyden (D-OR) and Lee (R-UT) and Congressman Davidson (R-OH) and Congresswoman Lofgren (D-CA) with strong bipartisan support in both chambers of the US Congress. The Senate version is cosponsored by Senators Hirono (D-HI), Daines (R-MT), Tester (D-MT), and Lummis (R-WY), while Representatives Biggs (R-AZ), Jacobs (D-CA), Jayapal (D-WA)l, and Massie (R-KY) are cosponsors in the House.
The GSRA addresses a wide range of concerns about US surveillance practices: if enacted, it will protect Americans against unconstitutional searches of their private communications and ensure that government agencies are held accountable for the searches they conduct. We are especially pleased that the GSRA includes provisions to improve Americans’ ability to challenge unlawful surveillance in court. These provisions address some of the hurdles that the Foundation faced in our legal challenge to the National Security Agency’s use of Section 702 to conduct “Upstream” surveillance.
The reforms set out in the GSRA are necessary components for the reauthorization of Section 702, but there is still more to be done to protect the privacy and free expression rights of both US citizens as well as citizens of other countries who are not located within the US. Specifically, in addition to the reforms proposed by the GSRA, the statute should be amended to significantly narrow the scope of reasons for which a person might become a target of surveillance.
The Wikimedia Foundation is the nonprofit host of free and open knowledge projects, including Wikipedia, that span the globe. They are edited and governed by hundreds of thousands of volunteer contributors, and serve millions of readers around the world. Under current law, any person who is not a US citizen and is located outside the US can be selected as a target for surveillance if federal agencies such as the NSA, CIA, or FBI believe that they may be a source of foreign intelligence information — which covers any information related to US foreign affairs. This extremely broad category allows such agencies to target for electronic surveillance people engaged in innocuous, lawful activities like journalism, policy advocacy, or editing Wikipedia.
Section 702’s language should be narrowed to limit the scope of this targeting by, at a minimum, incorporating the specific set of national security threats named in US President Biden’s 2022 Executive Order 14086 on signals intelligence. We urge the US Congress to codify that Executive Order by adding its protections to the robust set of reforms in the GSRA.
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Written by the Wikimedia Foundation’s: Stan Adams, Lead Public Policy Specialist for North America, and Jan Gerlach, Director of Public Policy.
The National Security Agency (NSA) can track anyone who reads or edits a Wikipedia article. We know this because the surveillance powers granted by Section 702 of the Foreign Intelligence Surveillance Act (FISA) allow the NSA to intercept and search virtually all text traffic that crosses US networks on its way to or from international networks. In order for people to use Wikipedia — or share any form of free knowledge without fear — Congress must make the following reforms to 702 if it decides to reauthorize the statute in the coming months: The scope of surveillance must be narrowed; the government must provide notice to the people it surveils; and people must be able to bring legal challenges against the government for its misuses of surveillance authorities.
Research has shown that when people believe that governments are spying on their electronic communications and web browsing, they are inhibited from full participation and engage in self-censorship to avoid the threat of governmental reprisals for accurately documenting or accessing certain kinds of information. Such a “chilling effect” creates a measurable decline in activity on Wikipedia, and ultimately harms our ability to empower people to share and exchange knowledge, everywhere. This is why the Wikimedia Foundation sued the National Security Agency (NSA) in 2015 to challenge its use of surveillance authorities under the Foreign Intelligence Surveillance Act (FISA).
Our lawsuit challenged the NSA’s “Upstream” collection. Upstream collection refers to a system that copies internet traffic that is “to, from, or about” a surveillance target into databases that the NSA and other intelligence agencies can search through to find the contents of specific communications. Despite the Foundation’s years-long legal battle and widespread public opposition to this warrantless surveillance, the underlying statutory authorities remain. The government’s use of mass surveillance continues unabated.
One of these authorizing statutes, Section 702 of FISA, is set to expire at the end of 2023. If Congress chooses to reauthorize Section 702, it must enact comprehensive and substantial reforms, including reforms to prevent the government from evading privacy protections under the US Constitution. It must limit uses of other authorities such as Executive Order 12333 for surveillance purposes. These reforms are not only necessary to preserve the privacy of Wikipedia editors and readers, they are essential to provide meaningful transparency and redress mechanisms to hold federal intelligence and enforcement agencies accountable.
Unfortunately, the US intelligence agencies have so far denied the need for legislative reforms, urging Congress to renew Section 702 as-is and promising to curb the ongoing misuses of this authority using administrative means. Despite the assurances, abuses and misuses continue, violating the privacy of people around the world as well as the constitutional rights of an untold number of Americans every year.
The Wikimedia Foundation and our allies in surveillance reform have already identified the necessary elements for reform. These elements were communicated directly to Congress earlier this year during the Senate Judiciary Committee’s Section 702 oversight hearing.
- The scope of surveillance must be narrowed, including to prevent warrantless surveillance of Americans and to limit the eligible targets of surveillance outside the US to foreign powers and agents of foreign powers.
- The government must be required to provide notice of surveillance, subject to reasonable exceptions, to answer both due process concerns and to promote greater accountability within government agencies.
- Finally, to enable those who were surveilled to challenge the government’s use of this authority, Congress must provide a way for people to challenge unlawful surveillance and narrow the application of the “state secrets” doctrine, a key barrier to previous litigation including the Wikimedia Foundation’s suit against the NSA for its “Upstream” surveillance practices.
Section 702 should not be reauthorized without enacting these key reforms. Research shows that when people were made aware of the pervasive electronic surveillance conducted under Section 702, there was a measurable decrease in interactions with certain kinds of information, such as Wikipedia articles that include words the government associates with terrorism. The chilling effects of pervasive government surveillance threaten to have a long-term negative impact on the quality of information available on Wikipedia and people’s willingness to access it. Even with these reforms in place, it will take time to rebuild the trust the government sacrificed through misuse and overreach of authorities like Section 702. That time should start now.
The Foundation’s mission includes protecting the volunteer-run Wikimedia projects, including Wikipedia, and the people that make up the free knowledge movement. We do that by defending peoples’ ability to read and contribute to comprehensive, high-quality information sources like Wikipedia without fear of covert and unaccountable government surveillance. We urge Congress not to accept watered-down half measures posing as reform, but to enact strong, comprehensive changes to protect privacy and to ensure that government intelligence and law enforcement agencies are held appropriately accountable.
