In the gritty 2008 Batman reboot The Dark Knight, Bruce Wayne uses his position at Wayne Enterprises to build a cell phone surveillance system in order to find the Joker, a terrorist on a killing spree in Gotham City. Concerned about the invasiveness of the surveillance program, Batman turns the program over to Lucius Fox. Mr. Fox is appalled by the program, but agrees to use it to find the Joker because of the significant threat of death and destruction. However, he only accepts on the condition that he can destroy the program after its use.
This dark fiction created by Christopher Nolan provides an analogy for surveillance programs conducted pursuant to Title VII of the FISA Amendments Act (FAA), which is set to expire on December 31, 2017 unless Congress acts to extend the law.
Much like Batman’s terrorist surveillance program, surveillance conducted to Title VII (specifically Section 702), such as Prism and Upstream, shocked people when it was dramatically revealed in 2013. Also, like Batman’s cell phone surveillance, Section 702 programs were developed to counteract terrorism and they’re only reviewed by trusted individuals tasked with protecting our right to privacy.
The analogy breaks down in how 702 programs are restricted. Section 702 surveillance is not limited to counter terrorism. Section 702 programs may be used for the purpose of acquiring “foreign intelligence information.” Unfortunately, foreign intelligence information is defined extraordinarily broadly, and includes information that relates to “the conduct of the foreign affairs of the United States.” For non-U.S. people, the issue is less about how 702 authority is “abused” and more about the inherently privacy-invasive and harmful ways it can permissibly be used.
The broad application undermines the moral authority to operate invasive surveillance programs and unnecessarily impugns the rights of people around the world. It also creates an indefensible international standard that other countries could, and do, follow. And unfortunately many of those countries do not have the same legal protections.
We urge Congress to amend the law to expressly limit the valid foreign intelligence purposes of Section 702, such as to specific national security threats: sabotage, international terrorism, clandestine intelligence activities, attacks on the U.S. and its allies, and WMD proliferation.
This is not the only reform we’re advocating for. (Read more here.) But limiting the communications that can be targeted by these invasive programs would also sharply limit the number of innocent people around the world who are caught up in this invasive surveillance.