SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
5
#000000
#FFFFFF
Flawed Oversight Board Report Endorses NSA's General Warrants
Jul 02, 2014
The Privacy and Civil Liberties Oversight Board (PCLOB) issued a legally flawed and factually incomplete report late Tuesday that endorses Section 702 surveillance. Hiding behind the "complexity" of the technology, it gives short shrift to the very serious privacy concerns that the surveillance has rightly raised for millions of Americans. The board also deferred considering whether the surveillance infringed the privacy of many millions more foreigners abroad.
The board skips over the essential privacy problem with the 702 "upstream" program: that the government has access to or is acquiring nearly all communications that travel over the Internet. The board focuses only on the government's methods for searching and filtering out unwanted information. This ignores the fact that the government is collecting and searching through the content of millions of emails, social networking posts, and other Internet communications, steps that occur before the PCLOB analysis starts. This content collection is the centerpiece of EFF's Jewel v. NSA case, a lawsuit battling government spying filed back in 2008.
The board's constitutional analysis is also flawed. The Fourth Amendment requires a warrant for searching the content of communication. Under Section 702, the government searches through content without a warrant. Nevertheless, PLCOB's analysis incorrectly assumes that no warrant is required. The report simply says that it "takes no position" on an exception to the warrant requirement when the government seeks foreign intelligence. The Supreme Court has never found this exception.
PCLOB findings rely heavily on the existence of government procedures. But, as Chief Justice Roberts recently noted: "the Founders did not fight a revolution to gain the right to government agency protocols." Justice Roberts' thoughts are on point when it comes to NSA spying--mass collection is a general warrant that cannot be cured by government's procedures.
The PCLOB's proposed reforms for Section 702 are an anemic set of recommendations that will do little to stop excessive surveillance. For example, rather than rein in government communications searches, the PCLOB simply asks the NSA to study the issue.
The PCLOB report provides the public with much needed information about how the 702 program works. But the legal analysis is incorrect and the report fails to offer effective reforms. The government's collection and search of Americans' communications without a warrant or individually approved court order is barred by the Constitution and must be stopped. We look forward to continuing such arguments in Jewel v. NSA, our ongoing case against the NSA's mass spying programs.
An Urgent Message From Our Co-Founder
Dear Common Dreams reader, It’s been nearly 30 years since I co-founded Common Dreams with my late wife, Lina Newhouser. We had the radical notion that journalism should serve the public good, not corporate profits. It was clear to us from the outset what it would take to build such a project. No paid advertisements. No corporate sponsors. No millionaire publisher telling us what to think or do. Many people said we wouldn't last a year, but we proved those doubters wrong. Together with a tremendous team of journalists and dedicated staff, we built an independent media outlet free from the constraints of profits and corporate control. Our mission has always been simple: To inform. To inspire. To ignite change for the common good. Building Common Dreams was not easy. Our survival was never guaranteed. When you take on the most powerful forces—Wall Street greed, fossil fuel industry destruction, Big Tech lobbyists, and uber-rich oligarchs who have spent billions upon billions rigging the economy and democracy in their favor—the only bulwark you have is supporters who believe in your work. But here’s the urgent message from me today. It's never been this bad out there. And it's never been this hard to keep us going. At the very moment Common Dreams is most needed, the threats we face are intensifying. We need your support now more than ever. We don't accept corporate advertising and never will. We don't have a paywall because we don't think people should be blocked from critical news based on their ability to pay. Everything we do is funded by the donations of readers like you. When everyone does the little they can afford, we are strong. But if that support retreats or dries up, so do we. Will you donate now to make sure Common Dreams not only survives but thrives? —Craig Brown, Co-founder |
This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License.
Cindy Cohn
Cindy Cohn is legal director for the Electronic Frontier Foundation (EFF), as well as its general counsel, coordinating over 40 national class action lawsuits against the telecommunications carriers and the government seeking to stop warrantless NSA surveillance
The Privacy and Civil Liberties Oversight Board (PCLOB) issued a legally flawed and factually incomplete report late Tuesday that endorses Section 702 surveillance. Hiding behind the "complexity" of the technology, it gives short shrift to the very serious privacy concerns that the surveillance has rightly raised for millions of Americans. The board also deferred considering whether the surveillance infringed the privacy of many millions more foreigners abroad.
The board skips over the essential privacy problem with the 702 "upstream" program: that the government has access to or is acquiring nearly all communications that travel over the Internet. The board focuses only on the government's methods for searching and filtering out unwanted information. This ignores the fact that the government is collecting and searching through the content of millions of emails, social networking posts, and other Internet communications, steps that occur before the PCLOB analysis starts. This content collection is the centerpiece of EFF's Jewel v. NSA case, a lawsuit battling government spying filed back in 2008.
The board's constitutional analysis is also flawed. The Fourth Amendment requires a warrant for searching the content of communication. Under Section 702, the government searches through content without a warrant. Nevertheless, PLCOB's analysis incorrectly assumes that no warrant is required. The report simply says that it "takes no position" on an exception to the warrant requirement when the government seeks foreign intelligence. The Supreme Court has never found this exception.
PCLOB findings rely heavily on the existence of government procedures. But, as Chief Justice Roberts recently noted: "the Founders did not fight a revolution to gain the right to government agency protocols." Justice Roberts' thoughts are on point when it comes to NSA spying--mass collection is a general warrant that cannot be cured by government's procedures.
The PCLOB's proposed reforms for Section 702 are an anemic set of recommendations that will do little to stop excessive surveillance. For example, rather than rein in government communications searches, the PCLOB simply asks the NSA to study the issue.
The PCLOB report provides the public with much needed information about how the 702 program works. But the legal analysis is incorrect and the report fails to offer effective reforms. The government's collection and search of Americans' communications without a warrant or individually approved court order is barred by the Constitution and must be stopped. We look forward to continuing such arguments in Jewel v. NSA, our ongoing case against the NSA's mass spying programs.
Cindy Cohn
Cindy Cohn is legal director for the Electronic Frontier Foundation (EFF), as well as its general counsel, coordinating over 40 national class action lawsuits against the telecommunications carriers and the government seeking to stop warrantless NSA surveillance
The Privacy and Civil Liberties Oversight Board (PCLOB) issued a legally flawed and factually incomplete report late Tuesday that endorses Section 702 surveillance. Hiding behind the "complexity" of the technology, it gives short shrift to the very serious privacy concerns that the surveillance has rightly raised for millions of Americans. The board also deferred considering whether the surveillance infringed the privacy of many millions more foreigners abroad.
The board skips over the essential privacy problem with the 702 "upstream" program: that the government has access to or is acquiring nearly all communications that travel over the Internet. The board focuses only on the government's methods for searching and filtering out unwanted information. This ignores the fact that the government is collecting and searching through the content of millions of emails, social networking posts, and other Internet communications, steps that occur before the PCLOB analysis starts. This content collection is the centerpiece of EFF's Jewel v. NSA case, a lawsuit battling government spying filed back in 2008.
The board's constitutional analysis is also flawed. The Fourth Amendment requires a warrant for searching the content of communication. Under Section 702, the government searches through content without a warrant. Nevertheless, PLCOB's analysis incorrectly assumes that no warrant is required. The report simply says that it "takes no position" on an exception to the warrant requirement when the government seeks foreign intelligence. The Supreme Court has never found this exception.
PCLOB findings rely heavily on the existence of government procedures. But, as Chief Justice Roberts recently noted: "the Founders did not fight a revolution to gain the right to government agency protocols." Justice Roberts' thoughts are on point when it comes to NSA spying--mass collection is a general warrant that cannot be cured by government's procedures.
The PCLOB's proposed reforms for Section 702 are an anemic set of recommendations that will do little to stop excessive surveillance. For example, rather than rein in government communications searches, the PCLOB simply asks the NSA to study the issue.
The PCLOB report provides the public with much needed information about how the 702 program works. But the legal analysis is incorrect and the report fails to offer effective reforms. The government's collection and search of Americans' communications without a warrant or individually approved court order is barred by the Constitution and must be stopped. We look forward to continuing such arguments in Jewel v. NSA, our ongoing case against the NSA's mass spying programs.
We've had enough. The 1% own and operate the corporate media. They are doing everything they can to defend the status quo, squash dissent and protect the wealthy and the powerful. The Common Dreams media model is different. We cover the news that matters to the 99%. Our mission? To inform. To inspire. To ignite change for the common good. How? Nonprofit. Independent. Reader-supported. Free to read. Free to republish. Free to share. With no advertising. No paywalls. No selling of your data. Thousands of small donations fund our newsroom and allow us to continue publishing. Can you chip in? We can't do it without you. Thank you.
To inform. To inspire. To ignite change for the common good.
News & Opinion
Trending
Common Dreams, Inc. Founded 1997. Registered 501(c3) Non-Profit
Privacy Policy