Internet Surveillance Program Unfairly Maligned, Government Officials Tell PCLOB

PCLOB is diving into Internet surveillance after completing a report critical of the government’s phone metadata collection program, authorized by Section 215 of the Patriot Act (CD Dec 19 p4). The executive branch-appointed panel made 46 total suggestions, arguing that companies or a third party, not the government, should manage the phone metadata the government wants to access. In the coming months, PCLOB expects to release a similar report on Section 702 surveillance efforts, Chairman David Medine has said (CD Jan 31 p15). Wednesday’s daylong hearing was the first major public event working toward that report.

Section 702 covers two types of collection -- PRISM and Upstream, said Rajesh De, NSA general counsel. PRISM collects from ISPs all electronic communications to and from specific selectors -- a phone number or email, for example, De said. Upstream focuses on collecting information about the Internet traffic of these selectors from Internet backbone providers, De said. Neither collects information based on keyword selectors, a common misperception, De said.

Section 702 has been inaccurately conflated with Section 215, a “bulk” collection program, said Robert Litt, Office of the Director of National Intelligence (ODNI) general counsel. As opposed to Section 215, where the government gathers mass amounts of data and later figure out what it wants, Section 702 “is a situation where we figure out what we want and we get that specifically,” he said.

The government can’t figure out what it wants “without in some way inspecting” every single communication within a particular universe, said American Civil Liberties Union Deputy Legal Director Jameel Jaffer. “You could call that bulk collection, or you could call that something else,” he said, but “scanning of every communication in a particular universe raises constitutional issues.” Laura Donohue, professor at Georgetown Law and director of Georgetown’s Center of National Security and the Law, agreed. “The NSA can actually use computer selection terms and other information such as words or phrases or discriminators to scan content,” she said. “So if it can collect all the international communications, and then scan the content of those communications, then I would argue that is a search for the purposes of the Fourth Amendment at the point of collection."

Not so, said government officials. The point of collection is not a search under the Fourth Amendment definition, said Justice Department Deputy Assistant Attorney General Brad Wiegmann. There is a well-established Fourth Amendment exception for foreign intelligence, he said. Hofstra University Law professor Julian Ku said Section 702 must be interpreted in context. Judicial precedent has consistently affirmed the president’s “broad power” to authorize electronic foreign surveillance, said Ku, pointing to cases upholding warrantless wiretap surveillance overseas. “702 almost certainly requires more limitations than are actually required by the Constitution,” he said. The section’s restraints -- it’s subject to frequent audits and reauthorization -- “could in some circumstance encroach on the president’s foreign intelligence powers,” Ku said. Section 702 is a “sensible compromise” between the privacy concerns of individuals and the need to conduct foreign intelligence surveillance, he said.

'Narrow’ Exceptions

Cases upholding this “exception” were narrow, involved specific probable cause and predate the Foreign Intelligence Surveillance Court, said ACLU’s Jaffer. “No court has ever approved a foreign intelligence exception” that is “broad enough” to authorize Section 702, he said.

PCLOB members pressed government officials on whether the program should apply a more rigorous probable cause standard at each step. To determine if it’s worth collecting electronic information for a target’s email address or phone number, two standards must be met, said NSA’s De: The target must be of foreign intelligence value and the target must be determined to be outside the U.S. This is not a high enough bar, said several academics and civil liberties advocates, including Rachel Levinson-Waldman, counsel to the Brennan Center’s Liberty and National Security Program. De countered that analysts regularly have an obligation to revisit the overseas determination, and Wiegmann said the program had failed less than one time in every thousand cases in determining if a target is abroad.

But tens of thousands of “wholly domestic” communications are being collected through this program, “that have no foreign intelligence value,” Levinson-Waldman said. President Barack Obama has pledged to narrow the program to limit incidental collection of U.S. citizens’ electronic communication (CD Jan 21 p1).

What if government had to get a FISC warrant each time it wanted to query its Section 702 database, asked several PCLOB board members. “You'd have to think about and factor in that you'd be introducing delay into the system,” said FBI General Counsel James Baker. There would be training issues and technical costs to consider before implementing such a requirement, he said. “You could potentially create a gap” in intelligence, because “there would be a disinclination for people … to actually go and pursue that extra information,” he said.

Industry doesn’t think Obama’s public statements have been enough to quell foreign concerns, said Dean Garfield, CEO of the Information Technology Industry Council, a communications and technology trade association. The “Made in the USA” tag is “increasingly becoming a basis to question the integrity and security of technologies,” Garfield said. “The economic impact is significant and ongoing.” The government could help by affirming “data acquisition pursuant to 702 is not being done in an indiscriminate manner,” he said.

The U.S. has an obligation to “refrain from interfering with the ability of other countries to protect their own citizens,” said Laura Pitter, Human Rights Watch senior national security researcher. The U.S. doesn’t interpret Section 702 as violating any international treaties, specifically the International Covenant on Civil and Political Rights (ICCPR), said John Bellinger, a former State Department legal adviser during George W. Bush’s second term. “I am not aware of any single government in the world … who believes that their right to conduct electronic surveillance of people outside their territory is controlled by the ICCPR.” But they should, particularly the U.S., said Pitter. “The U.S. is in a unique position because most of the world’s data flows through its borders.”