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Privacy and Civil Liberties Oversight Board to NSA: Why is Bulk Collection of Telephone Records Still Happening?

The Privacy and Civil Liberties Oversight Board (PCLOB) exists to ensure that national security does not trump privacy and civil liberties, and it has been especially busy since the publication of the first Snowden leak. Congress and the President asked the Board to review the use of Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act, as well as the operations of the Foreign Intelligence Surveillance Court. In 2014, PCLOB published two reports addressing these issues. And last week, the Board published a “Recommendations Assessment Report [pdf].”

Section 215 Recommendations

The most striking piece of the report is also the first:

Recommendation 1: End the NSA’s Bulk Telephone Records Program

Not implemented (implementing legislation proposed)

The NSA uses Section 215 of the Patriot Act to justify its bulk telephone records collection program. But as we have noted repeatedly, there’s no evidence that the Section 215 program is necessary for stopping terrorism—something PCLOB, the President’s Review Group, and even the administration itself have all admitted. On the other hand, there’s plenty of evidence of how the program invades innocent peoples’ privacy. And PCLOB’s recommendation is very simple here: the program should end.

Of course, Section 215 expires on June 1, and Congress will have to vote on whether to reauthorize it. It’s important to note that “the Board did not recommend that ending the program be contingent on the passage of legislation that would replicate the program’s capabilities.” We agree. Congress cannot simply reauthorize Section 215 and ignore the serious civil liberties concerns it creates.

PCLOB highlighted another important recommendation: the administration should ensure that the public understands how it is interpreting statutes, especially “if the text of the statute itself is not sufficient to inform the public of the scope of asserted government authority,” both “intended uses of broadly worded authorities at the time of enactment” and “novel interpretations of laws already on the books.” This recommendation has been partially implemented. But considering the concern about how intelligence reform legislation such as USA FREEDOM could have been interpreted, this recommendation should be at the forefront as discussions about NSA reform legislation continue. 

Foreign Intelligence Surveillance Court (FISC) Recommendations

The Board’s report back on FISC reforms was disappointing. In January of last year, PCLOB called on Congress to enact legislation that would reform the FISC by “enabling the FISC to hear independent views” from a third-party and by expanding opportunities for judicial review of FISC decisions. It also called for the government to release more important opinions, both those that have already been issued and going forward.

This reform is sorely needed, considering that the FISC produces significant legal interpretations in secret, outside of the adversarial court system. But it’s not happening. The first two recommendations were at least partly addressed in the Senate version of USA FREEDOM—but of course, USA FREEDOM stalled in the Senate, leaving the FISC untouched.        

And when it comes to more transparency, the report noted that, while some opinions are being released, other significant opinions remain classified:

For instance, the government has not released the first opinion issued by the FISC that approved a certification under Section 702 of FISA, in which the FISC was first required to evaluate whether the Section 702 surveillance program complies with the statute and the Fourth Amendment.

Section 702 Recommendations

As we noted in July, the PCLOB’s Section 702 report was legally flawed and factually incomplete. Nevertheless, the report did include multiple recommendations that would improve the way the government currently uses Section 702.

Unfortunately, most of the recommendations with regards to Section 702 wouldn’t be publicly visible, since they mainly require the NSA to provide more information and justification to the FISC about who it targets under Section 702. One recommendation calls for the Intelligence Community to “develop a comprehensive methodology for assessing the efficacy and relative value of counterterrorism programs”—something that would be incredibly useful, considering the misinformation NSA defenders have spread about the efficacy and need for NSA surveillance.  Unfortunately, the report notes that it is not being implemented. Another recommendation, which the administration is reportedly working on, would require clearer minimization rules and some limits on use of Section 702 data by the FBI in non–foreign intelligence criminal matters. Board Chairman David Medine and Board Member Patricia Wald joined this recommendation but also issued a separate recommendation that would go further and require judicial approval for the FBI’s use of Section 702 data in non–foreign intelligence matters.

However, some of the recommendations would require the NSA to provide more information to the public, including, “with minimal redactions, declassified versions of the FBI’s and CIA’s Section 702 minimization procedures, as well as the NSA’s current minimization procedures.” According to the report, public release of these declassified versions of minimization procedures is imminent.

Another recommendation hits on one of the key questions civil liberties advocates like Senator Ron Wyden have been asking since before the Snowden leaks: How much data does the NSA collect on Americans? While that question has been partly answered by the leaks, the Board notes that Section 702 in particular remains opaque: “Lawmakers and the public do not have even a rough estimate of how many communications of U.S. persons are acquired under Section 702.” The report calls for the NSA to provide that information to the public. 

Unfortunately, regardless of which of the Board’s recommendations on Section 702 are implemented, the program itself is fundamentally flawed, and no degree of window dressing can improve it.

The biggest takeaway from this report is the Board’s strong reiteration of its first recommendation: Section 215 should end. If you agree, let Congress know that you want to see a no vote on reauthorization of Section 215 in June. In the meantime, EFF will continue to push for comprehensive NSA reform legislation.

Nadia Kayyali

Nadia Kayyali is a member of the activism team at the Electronic Frontier Foundation.

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