During 2013-2015, we campaigned for the sunset of Section 215 of the PATRIOT Act, a provision that had been wilfully and unconstitutionally interpreted to authorize a mass phone metadata dragnet. Through our national affiliate Restore The Fourth and our allies, we succeeded, against all odds, in temporarily sunsetting Section 215; it then resurfaced in a modified form in the USA FREEDOM Act of 2015. Under that law, the untargeted phone metadata dragnet will theoretically end at the end of November 2015; however, non-individualized (and therefore unconstitutional) mass phone metadata collection will continue.
Beyond this, the Section 215 phone metadata dragnet was only ever a tiny proportion of the US government’s mass surveillance. The big enchilada is mass Internet surveillance, conducted since at least 2001 and retroactively “authorized” in 2008 under Section 702 of the FISA Amendments Act. Section 702 is due to sunset in June 2017, and we’re already working hard to help make that happen.
The Brennan Center for Justice has this article, noting that we don’t even know yet how many Americans’ communications are swept up in Section 702. It’s probably a high proportion. Conclusively proving that any individual or entity has been surveilled under it, to the satisfaction of US courts, is still difficult even after Snowden. But we reiterate what we have always said: The Fourth Amendment requires individualized, before-the-fact probable cause. This is a natural right of anyone the US government wishes to prosecute, not just of US citizens. The US government violates the Constitution if it conducts mass, suspicionless surveillance of the whole world.
Beyond this, the US government’s refusal to protect the privacy of anyone, but especially non-citizens, has created major headaches for US firms seeking customers in the EU. In October 2015, the European Court of Justice invalidated the Safe Harbor agreement, which allowed US firms to self-certify that they were protecting their EU customers’ privacy, on the ground that Section 702 surveillance rendered fraudulent any such promises by US firms. If US firms want Safe Harbor back, meaningful Section 702 reform will be necessary.
So between now and June 2017, we’ll be working to #Sunset702; you can join the fight here.