Don’t Let Government Store Metadata, White House’s Surveillance Panel Recommends

President Barack Obama believes the surveillance programs authorized by FISC and overseen by Congress are “necessary for our security,” Carney said at a news conference when announcing the recommendations would be released. Yet Obama has been “proactive and aggressive” at pursuing this review and an ongoing review being conducted by the Privacy and Civil Liberties Oversight Board (PCLOB), Carney added. “We're not going to come out with an assessment five minutes later.” Carney described a timeline in which Obama would comment on the recommendations and which he may implement in January.

Obama announced his intent to assemble the review group in August following the uproar over leaks about surveillance. He named the five members in early fall, and the group solicited close to 250 comments, posted on the Office of the Director of National Intelligence website (http://1.usa.gov/1c1tIv2). It consists of Richard Clarke, Michael Morell, Cass Sunstein, Peter Swire and Geoffrey Stone, the first four of whom have worked in the executive branch.

"The current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty,” said the 308-page report. “Consistent with this recommendation, we endorse a broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes.” Phone surveillance under Patriot Act Section 215 should be amended, the group recommended. That’s so that the government can query metadata only if it “has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect ‘against international terrorism or clandestine intelligence activities'” and “like a subpoena, the order is reasonable in focus, scope, and breadth,” the group said.

The group recommended limitations on how the FISC compelled service providers, such as telcos and carriers, to give up information to the government as well as limits on how National Security Letters are issued. There should be “prior judicial review” except during emergencies, the report said. Congress should pass legislation authorizing phone and Internet companies to disclose information about the government requests for data they receive in addition to legislation compelling information about these surveillance programs being made available to Congress and to the public, as much as possible. The Privacy Act of 1974 should apply to U.S. citizens and foreigners, said the report. The director of the National Security Agency should be a Senate-confirmed position that civilians can be eligible for, the group advocated. “The President should give serious consideration to making the next Director of NSA a civilian.” The FISC should be more transparent and include a “public interest advocate,” the group said.

Situation Room Meeting

Wednesday morning, Obama met with the group in the White House Situation Room. The White House plans to weigh in on what recommendations it’s accepting in January, Carney said. All the reporting and speculation on what is going into the report spurred the White House to make it public Wednesday, a “perfectly appropriate” decision, he said. “My understanding is there have been some inaccuracies.”

Obama “noted that the group’s report represented a consensus view, particularly significant given the broad scope of the members’ expertise in counterterrorism, intelligence, oversight, privacy and civil liberties,” said a White House news release. “The President again stated his expectation that, in light of new technologies, the United States use its intelligence collection capabilities in a way that optimally protects our national security while supporting our foreign policy, respecting privacy and civil liberties, maintaining the public trust, and reducing the risk of unauthorized disclosure.” The White House called the report “comprehensive and high quality” and said Obama will review the recommendations with his national security team and “continue consulting with Congress” on legislative changes.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., praised the recommendations and has invited the review group members to testify at a hearing in January. “The message to the NSA is now coming from every branch of government and from every corner of our nation: You have gone too far. The bulk collection of Americans’ data by the U.S. government must end,” Leahy said in a written statement. “This momentous report from the President’s closest advisers is a vindication of the efforts of a bipartisan group of legislators that has been working for years to protect Americans’ privacy by reining in these intelligence authorities.”

Leahy said he will continue to advocate for passage of the USA Freedom Act, a comprehensive surveillance overhaul that would end the bulk phone metadata surveillance among many other changes. His office pointed to several recommendations that align with the proposed USA Freedom Act.

The Electronic Frontier Foundation didn’t see the recommendations as all positive. “We're disappointed that the recommendations suggest a path to continue untargeted spying,” said EFF Senior Staff Attorney Kurt Opsahl in a statement. “Mass surveillance is still heinous, even if private company servers are holding the data instead of government data centers.” EFF Activist Trevor Timm also pointed to concerns that “the panel appears to allow the NSA to continue the mass collection of emails, chats and other electronic communications of Americans under the pretext that the NSA is ’targeting’ foreigners overseas.”

Technology firm ThoughtWorks led a charge against the FISA Improvements Act, sponsored by Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif. Her bill would make various updates to surveillance law, including providing for amicus voices in the FISA Court, but would not end the surveillance activities themselves. ThoughtWorks sent a letter to Congress Wednesday signed by more than 50 organizations, including the American Civil Liberties Union, EFF, Free Press, Public Knowledge, New America Foundation’s Open Technology Institute, TechFreedom and the American Library Association (http://bit.ly/1bdMRp6). “If the FISA Improvements Act were to pass, the NSA would continue to collect telephone records of hundreds of millions of Americans not suspected of any crime,” the letter said. S-1631 is “not real reform” and is a bill that “seeks to entrench” current government practices, said the groups. “This is a violation of Americans’ privacy and Constitutional rights.”

"A giant snowball of momentum” in 2013 led ThoughtWorks to speak out in favor of the USA Freedom Act, which would end the bulk metadata collection program and make other aggressive changes, and oppose Feinstein’s bill, said Joanna Parke, managing director-North America. “The timing is right,” Parke told us of the opposition letter. ThoughtWorks typically has not spoken out on legislation, but the death of “our colleague” Aaron Swartz, an activist software developer, a year ago helped put ThoughtWorks -- “a group of passionate technologists” who see the Internet as “sort of a sacred thing” -- on a path forward politically, Parke said. There is no proof these surveillance programs have made people safer, she said, describing ThoughtWorks’ opposition to both phone and Internet surveillance: “They go hand in hand.” ThoughtWorks is a global firm, and in 2014, it’s looking at ways to tackle the U.S. surveillance debate from a more international perspective, Parke said, flagging concerns in Brazil.

EFF worries about the FISA Improvements Act cutting off the surveillance debate. “The FISA Improvements Act has already passed out of the Senate Intelligence Committee and could be taken up for a Senate vote,” said Rainey Reitman, chief operating officer of the Freedom of the Press Foundation and EFF’s activism team director, in a Wednesday blog post. “Last week, the Obama administration testified in support for the bill, and Senator Feinstein has confirmed that she intends to work with the House of Representatives on pushing her bill in January 2014.” Reitman referred to joint testimony from three U.S. intelligence officials before the Senate Judiciary Committee praising Feinstein’s bill and cautioning against any legislation that would end Patriot Act Section 215 phone surveillance or “public reporting of information concerning intelligence activities under FISA that could be used by our adversaries to evade surveillance, or which otherwise raises practical and operational concerns,” as the testimony stated (http://1.usa.gov/1kiWWt2).

Privacy Advocate Momentum

Other developments have added momentum to the privacy causes, Parke added. “The federal judge ruling on Monday was a huge boost to us,” she said, citing the Klayman v. Obama decision that said the phone surveillance program likely violates the Fourth Amendment (CD Dec 17 p3). She called the pending release of the surveillance review group’s recommendations “good news.” She hopes the recommendations are not in line with Feinstein’s bill, she said.

PCLOB, a five-member independent body within the executive branch, welcomed the review group’s report and plans its own report to be released either in late January or early February, it said in a statement Wednesday. The PCLOB report will be “based on its independent bipartisan review of the telephone metadata program operated pursuant to Section 215 of the USA PATRIOT Act, as well as on the operations of the Foreign Intelligence Surveillance Court,” it said. “Soon thereafter, the Board will release a separate report regarding Section 702 of the FISA Amendments Act.” PCLOB will weigh in the legality of surveillance programs and recommend “legislative and program changes” as part of this process, which it anticipates to be unclassified and made public, the board added.

The surveillance review group advocated changes to PCLOB. It should be traded out for “a newly chartered, strengthened, independent Civil Liberties and Privacy Protection Board,” with “broad authority to review government activity relating to foreign intelligence and counterterrorism whenever that activity has implications for civil liberties and privacy,” said the report. There should be a special assistant to the president for privacy who chairs a chief privacy officer council, the group said.

Obama’s conversation with 15 tech and telecom executives Tuesday (CD Dec 18 p13) was primarily focused on National Security Agency surveillance issues, said White House Senior Adviser Valerie Jarrett at a Politico event Wednesday. Several of the companies have advocated limiting surveillance practices. She had sent out the invitation to the CEOs and top executives, representing a range of companies including Facebook, Google, Microsoft, AT&T, Comcast, LinkedIn, Apple, Twitter and Netflix. The first part of the meeting focused on Healthcare.gov struggles and IT procurement issues, but that happened largely before Obama joined the conversation, Jarrett said. When Obama entered, he told the CEOs he understood the initial agenda items and said, “'But now, what I want to spend my time talking about is the NSA disclosures,'” according to Jarrett. “So the bulk, 99 percent of the time with the president, was focused on that issue.” (jhendel@warren-news.com)