Internet Surveillance Is Legal, Valuable, With Strong Oversight, PCLOB Says

Civil liberties advocates disagreed. The report overstates government claims of the program’s effectiveness and oversight, overlooks important legal precedent and incorrectly interprets the Fourth Amendment, they said. “They're basically buying into the government’s misdirection,” Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn told us. “It reads very much like a political document even though it has a legal analysis.” “A tremendous disappointment,” said Center for Democracy & Technology (CDT) President Nuala O'Connor. “A weak report,” said American Civil Liberties Union (ACLU) Deputy Legal Director Jameel Jaffer.

The report focuses on surveillance programs authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA), including Prism and Upstream. Prism gathers from ISPs electronic communications to and from specific selectors -- a phone number, an email. Upstream collects Internet traffic information on these selectors from Internet backbone providers. Both were established through public debate in Congress, distinctly separating Section 702 from the Section 215 bulk telephony metadata collection program, said PCLOB board member Jim Dempsey, also vice president-public policy at CDT, which disapproved of the report. PCLOB called the Section 215 programs potentially illegal and unconstitutional in a January report (CD Jan 24 p5).

PCLOB Chairman David Medine outlined the report’s recommendations Wednesday. The NSA should refine its targeting process to more “clearly articulate the foreign intelligence basis for the target,” he said. All agencies involved -- NSA, FBI, CIA -- should also take steps to update and publish their minimization procedures, while implementing ways to “assess effectiveness” and periodic assessments of the technology being used in the programs. “More work needs to be done about the technology associated with ... upstream collection in general,” said Dempsey. In a separate statement, Medine and board member Patricia Wald -- a retired chief judge for the U.S. Court of Appeals for the District of Columbia -- suggested two further steps: purging communications if no evidence of a crime is found, and requiring court approval to use American identifiers in a search.

"We take very seriously the board’s concerns regarding privacy and civil liberties, and we will review the board’s recommendations with care,” said National Intelligence Director James Clapper in a statement (http://bit.ly/1rk5aWO). House Permanent Select Committee on Intelligence Chairman Mike Rogers, R-Mich., will also review the report, he said in an email. “Although I continue to be concerned that the board lacks a full understanding of sensitive intelligence operations, the board was correct to recognize that Section 702 provides our government with valuable foreign intelligence,” he said. “At the same time, Section 702 contains ample privacy safeguards to protect the constitutional rights of Americans."

"This is not a bulk collection or a dragnet,” said PCLOB board member Rachel Brand, chief counsel for regulatory litigation at the U.S. Chamber of Commerce, echoing similar comments by other board members. Brand noted a recent transparency report from the Office of the Director of National Intelligence (ODNI) that showed the 702 program collected the Internet activity of 90,000 individuals, groups and organizations in 2013 -- a relatively small number, she said (CD July 1 p10).

It depends on how you define “collection,” countered EFF’s Cohn. The transparency report counts Internet activity as “collected” only if it actively searched. For Prism and Upstream to function, she said, the government first must have access to as much Internet activity as possible -- even if it is not storing that information -- then filter that information and search the relevant portions based on targets.

PCLOB’s report mainly discusses collection during the searching stage, but briefly mentions the program’s earlier steps. Upstream “may require access to a larger body of international communications than those that contain a tasked selector,” the report said. “Nevertheless, the government has no ability to examine or otherwise make use of this larger body of communications, except to promptly determine whether any of them contain a tasked selector. Only those communications (or more precisely, ’transactions') that contain a tasked selector go into government databases.” For Cohn, it’s not enough. “To evaluate a surveillance mechanism you have to look at the totality of it,” she said. “They admit backhandedly they're searching through a much broader range of things other than what they're keeping.” The ACLU’s Jaffer said “the report fails to grasp the civil liberties and human rights implications of permitting the government such broad access to the communications of innocent people."

PCLOB said the 702 programs trigger the Fourth Amendment rights of Americans, but found “no evidence of a backdoor” -- or using 702 to conduct warrantless searches on Americans -- said PCLOB’s Cook. “Our recommendations are designed to make sure one is not built,” she said. The House recently passed an amendment to its appropriations bill prohibiting the NSA from using funds for such “backdoor” searches (CD June 23 p14). Privacy advocates were appalled at PCLOB’s findings on the “backdoor” searches and its Fourth Amendment analysis. “That the board has endorsed such warrantless rummaging through our communications, just weeks after the House of Representatives voted almost three to one to defund the NSA’s ‘backdoor’ searches of Americans’ data, is a striking disappointment,” said New America Foundation’s Open Technology Institute Policy Director Kevin Bankston, in a statement.

The courts have authorized narrow exceptions to Fourth Amendment warrant requirements, EFF’s Cohn told us. A foreign intelligence exception is not one of them, she said. The report agreed. “There may be a ‘foreign intelligence exception’ to the warrant requirement permitting the executive branch to conduct wiretapping and other forms of electronic surveillance without judicial approval,” it said. “The Supreme Court has not decided whether such an exception exists.” But PCLOB did not take a stance on whether such an exception should exist.

That discredits the report’s Fourth Amendment analysis, Cohn said. “It’s not that I disagree with their analysis; it’s actually incorrect.” The report needed to say either 702 violates the Fourth Amendment or that a foreign intelligence exception should exist, and then base its analysis from that position. “You can go one of these two paths, but they didn’t do either,” Cohn said.

After PCLOB’s Section 215 report was used to bolster civil liberties advocate’s arguments, everyone agreed the government will now point to the Section 702 report to defend its surveillance programs. “The reforms the board recommends today regarding this awesome surveillance power are much weaker than those in their last report, and essentially boil down to suggesting that the government should do more and better paperwork and develop stricter internal protocols as a check against abuse.” PCLOB’s Brand disagreed. “Our targeted recommendations,” she said, “will further provide civil liberties and privacies.”