PCLOB Members Hopeful on FISA Court Reforms

During a surveillance conference at the Cato Institute Wednesday, PCLOB Chairman David Medine said the board's suggestion that FISA allow a pool of outside counsel to be given access to classified information so they may argue certain cases should have "tremendous long-term significance" and result in an improvement to its current practices. Patricia Wald, a PCLOB member and retired judge of the U.S. Court of Appeals for the District of Columbia, said a "small but adept group" that understands how FISA works will make a difference. And while the board's recommendation was for FISA to give the outside counsel availability of all of the information involved in the case at hand, Wald said she isn't sure that recommendation has been or will be followed.

One of the biggest lessons learned from the revelations by ex-NSA contractor and whistleblower Edward Snowden and the termination of the NSA's bulk phone data collection programs, Medine said, is that "if there had been greater transparency about how [the collection programs] operate, there would have been greater public acceptance and [also] democratic debate about how far the government should be going." PCLOB issued recommendations to the government last year on the bulk collection of individual's phone data, and while the government did a "very good job in many cases," Medine said, it hadn't accepted the board's suggestions in some areas. But Medine said the government has "moved forward" since the initial recommendations and most are "well on their way to implementation."

"The government has now accepted that it's important to analyze efficacy and develop a methodology for analyzing efficacy" of its programs, Medine said. In its initial review of NSA's phone data collection program, Medine said PCLOB found it to have very limited efficacy. PCLOB is doing an investigation into government organizations dealing with international surveillance, which concerns the implications and applications of executive order 12333 initially approved by President Ronald Reagan, Wald said. Medine said the report, while some aspects might be deemed classified, should be released early next year.

Rebecca Richards, NSA civil liberties and privacy officer, said it's trying to be more transparent, but hasn't made as much progress as most people would like. Richards said the transparency push is only two years old and is a process by which the agency needs to continue to learn and have more conversations about the subject to determine what efforts it should be making. Although transparency is important, Richards said it's important to understand NSA "can't be completely transparent without then telling the bad guys in bad guy country trying to do bad things to us so they change what they are doing." What the agency does and how it has conversations of transparency "is of interest to our foreign adversaries and that's something to keep in mind," she said. "We are taking steps. We are moving forward. Is there more to be done? Absolutely."

Sen. Patrick Leahy, D-Vermont, keynoted the event, and touted the passage of the USA Freedom Act. Americans lost trust in the intelligence community and became skeptical of existing legal protection, he said. "As Americans, do we really want to give up our basic freedoms for a hint of security?" said Leahy concerning bulk phone data collection. "And frankly, that's all it would be, is a hint." He added that Congress still has important work to do on this issue. "Just because you want to keep your rights as an American… doesn’t mean you’re giving up the security of this nation," he said. "I would argue that if we give up those rights, we’ve lost the security of our nation."