Tag Archives: surveillance

PCLOB issues report on U.S. government surveillance under Section 702 of FISA [UPDATED]

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The pre-release version of the Privacy and Civil Liberties Oversight Board’s Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) is now available online. [PDF]

Short version: The board found little legally awry with surveillance conducted under Section 702 of FISA, which permits the federal government to compel United States companies to assist them in conducting surveillance targeting foreign people and entities, noting that it was a strong, effective tool for counterterrorism. The extensive report explores the legal rationales for such surveillance and lists ten recommendations in its report. The scope of digital surveillance was detailed  in The Washington Post on Monday, which reported that only four countries in the world (the USA, Canada, UK, New Zealand and Australia) are not subject to the surveillance enabled by legal authority to intercept communications.

Context from Gregory McNeal in Forbes:

“Section 702 of FISA has not received the same level of attention as the 215 metadata collection program, largely because the program is not directly targeted at U.S. persons. However, under Section 702, the government can collect the contents of communications (for example examining email and other communications), rather than mere metadata, which it collects under Section 215.”

“702 is also a more powerful program because under it the government can collect the content of U.S. persons communications, if those persons are communicating with a foreign target. This means that U.S. persons communications can be incidentally collected by the agency, such as when two non-U.S. persons discuss a U.S. person. Communications of or concerning U.S. persons that are acquired in these ways may be retained and used by the government, subject to applicable rules and requirements. The communications of U.S. persons may also be collected by mistake, as when a U.S. person is erroneously targeted or in the event of a technological malfunction, resulting in “inadvertent” collection. In such cases, however, the applicable rules generally require the communications to be destroyed. Another circumstance where 702 collection has raised concerns is the collection of so-called “about” communication. An “about” communication is one in which the selector of a targeted person (such as that person’s email address) is contained within the communication but the targeted person is not necessarily a participant in the communication.” The PCLOB addresses each of these issues in their report.”

The PCLOB did find that “certain aspects of the program’s implementation raise privacy concerns,” specifically the “scope of the incidental collection of U.S. persons’ communications” when intelligence analysts targeted other individuals or entities.

As Josh Gerstein reported in Politico, the PCLOB “divided over key reforms to government collection of large volumes of email and other data from popular web businesses and from the backbone of the Internet. A preliminary report released Tuesday night hows that some of the proposals for changes to the Section 702 program caused a previously unseen split on the five-member Privacy and Civil Liberties Oversight Board: Two liberal members of the commission urged more aggressive safeguards, but a well-known privacy activist on the panel joined with two conservatives to withhold official endorsement of some of those changes.”

As Gerstein pointed out in a tweet, that means that reforms proposed in the House as Representatives go further than those recommended by the independent, bipartisan agency within the executive branch vested with the authority “to review and analyze actions the executive branch takes to protect the Nation from terrorism, ensuring the need for such actions is balanced with the need to protect privacy and civil liberties” and “ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism”

Perhaps even more problematically, the PCLOB wrote in the report that “the government is presently unable to assess the scope of the incidental collection of U.S. person information under the program.”

As Matt Sledge observed in the Huffington Post, the report’s authors “express frustration that the NSA and other government agencies have been unable to furnish estimates of the incidental collection of Americans’ communications, which ‘hampers attempts to gauge whether the program appropriately balances national security interests with the privacy of U.S. persons.’

But without signs of abuse, the board concludes privacy intrusions are justified in protecting against threats to the U.S. Nevertheless, the board suggests that the government take on the ‘backdoor searches’ that have alarmed Wyden. In those searches, the government searches through the content of communications collected while targeting foreigners for search terms associated with U.S. citizens and residents. The House voted in June to end such searches. The searches ‘push the program close to the line of constitutional reasonableness,’ the privacy board report says, but it doesn’t recommend ending them.

Privacy and civil liberties advocates issued swift expressions of dismay about the constitutionality of the surveillance and questioned the strength of the recommendations.

“The Board’s report is a tremendous disappointment,” said Nuala O’Connor, the president of the Center for Democracy and Technology, in a statement. “Even in the few instances where it recognizes the privacy implications of these programs, it provides little reassurance to all who care about digital civil liberties. The weak recommendations in the report offer no serious reform of government intrusions on the lives of individuals. It also offers scant support to the U.S. tech industry in its efforts to alleviate customer concerns about NSA surveillance, which continue to harm the industry in the global marketplace,” she added.

“If there is a silver lining, it is that the Board recognized that surveillance of people abroad implicates their human rights, as well as the constitutional rights of people in the U.S.,” said Greg Nojeim, director of the Center’s Project on Freedom, Security and Technology.  “However, the Board defers until a future date its consideration of human rights and leaves it to Congress to address the important constitutional issues.”

“If the Board’s last report on the bulk collection of phone records was a bombshell, this one is a dud,” said Kevin Bankston, policy director of New America’s Open Technology Institute (OTI).

“If the Board’s last report on the bulk collection of phone records was a bombshell, this one is a dud.  The surveillance authority the Board examined in this report, Section 702 of 2008’s FISA Amendments Act, is in many ways much more worrisome than the bulk collection program.  As the Board itself explains, that law has been used to authorize the NSA’s wiretapping of the entire Internet backbone, so that the NSA can scan untold numbers of our emails and other online messages for information about tens of thousands of targets that the NSA chooses without individualized court approval.  Yet 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.

“As Chief Justice Roberts said just last week, “the Founders did not fight a revolution to gain the right to government agency protocols,” they fought to require search warrants that are based on probable cause and specifically identify who or what can be searched.  Yet as we know from documents released earlier this week, government agents are searching through the data they’ve acquired through this surveillance authority–an authority that was sold to Congress as being targeted at people outside the US–tens of thousands of times a year without having to get a warrant first.

“The fact 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.  The Board is supposed to be an independent watchdog that aggressively seeks to protect our privacy against government overreach, rather than undermining privacy by proposing reforms that are even weaker than those that a broad bipartisan majority of the House has already endorsed.

“We are grateful to the Board for its last report and are grateful to them now for laying out, in the clearest and most comprehensive way we’ve seen so far, exactly how the NSA is using its surveillance authority.  But Congress shouldn’t wait for the NSA to take the Board’s weak set of recommendations and get its own house in order.  Congress should instead move forward with strong reforms that protect our privacy and that tell the NSA, as the Supreme Court told the government last week: if you want our data you need to come back with a warrant.”

The Electronic Frontier Foundation was even stronger, with Cindy Cohn calling the PCLOB report “legally flawed and factually incomplete.”

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.

Trevor Timm, writing in the Guardian, said the PCLOB “chickened out of making any real reform proposals” and questioned why one member of the panel didn’t support more aggressive recommendations in

“More bizarrely, one of the holdouts on the panel for calling for real reform is supposed to be a civil liberties advocate. The Center for Democracy and Technology’s vice president, James Dempsey, had the chance to side with two other, more liberal members on the four-person panel to recommend the FBI get court approval before rummaging through the NSA’s vast databases, but shamefully he didn’t.

Now, as the Senate takes up a weakened House bill along with the House’s strengthened backdoor-proof amendment, it’s time to put focus back on sweeping reform. And while the PCLOB may not have said much in the way of recommendations, now Congress will have to. To help, a coalition of groups (including my current employer, Freedom of the Press Foundation) have graded each and every representative in Washington on the NSA issue. The debate certainly isn’t going away – it’s just a question of whether the public will put enough pressure on Congress to change.”

Editor’s note: This post has been substantially rewritten. More statements were added, and the headline has been amended.

Privacy and Civil Liberties Report Finds NSA bulk phone records program illegal and ineffective

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Earlier this afternoon, I emailed info@pclob.gov in search of the report that the New York Times  and Washington Post had obtained and reported upon this morning. 2 hours later, I received a response: www.pclob.gov. There, visitors can now find, download and read a “Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court” and separate statements by Elisebeth Collins Cook  Rachel Brand. As Charlie Savage and Ellen Nakashima reported, Cook and Brand dissented from the report’s recommendation to end the collection of phone records under the 215 programs of the USA Patriot Act.

The privacy and civil liberties board’s report is strongly critical of the impact that mass surveillance has upon the privacy and civil liberties of American citizens, along with billions of other people around the world.

“The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program.”

PCLOB Board Members meet with President Obama on June 21, 2013​. Photo by Pete Souza.

PCLOB Board Members meet with President Obama on June 21, 2013​. Photo by Pete Souza.

While President Obama met with the board and heard their recommendations prior to his speech last week, his administration is disputing its legal analysis.

“We disagree with the board’s analysis on the legality,” said Caitlin Hayden, spokeswoman for the White House National Security Council, in an e-mail to Bloomberg News. “The administration believes that the program is lawful.”

House Intelligence Committee Chairman Mike Rogers (R-MI) was also critical of the report’s findings. “I am disappointed that three members of the Board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” he said in a statement.

The Electronic Frontier Foundation hailed the report as a vindication of its position on the consitutionality of the programs.

“The board’s other recommendations—increasing transparency and changing the FISA court in important ways—similarly reflect a nearly universal consensus that significant reform is needed,” wrote Mark Rumold, a staff attorney. “In the coming weeks, PCLOB is set to release a second report addressing the NSA’s collection under Section 702 of the FISA Amendments Act. We hope that the board will apply similar principles and recognize the threat of mass surveillance to the privacy rights of all people, not just American citizens.”

Coalition presses White House to make secret surveillance laws open to the public

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A coalition of organizations that support open government, press freedom and civil liberties have sent a letter to President Barack Obama urging him to make the laws that govern surveillance by the National Security Agency public. The letter, which I’ve published in full below, asks the constitutional law professor living at 1600 Pennsylvania Avenue to support a core principle of democratic governance that hails back (at least as far as) the 12 Tables posted in the Roman Forum: the people should be able to read the laws under which they are governed. The letter was sent to the White House on the eve of the second annual conference of the Open Government Partnership.

October 21, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W. Washington, DC 20500
Dear President Obama:
On behalf of citizens who support an open and accountable government, we are writing to urge you to pledge as part of the US’s new round of Open Government Partnership commitments to curb the secret law that enabled the National Security Agency’s surveillance programs to become much broader and more invasive than it was believed the law allowed.
Secret legal interpretations by the Justice Department’s Office of Legal Counsel (OLC) and the Foreign Intelligence Surveillance Court allowed the NSA’s surveillance programs to grow in ways that raise serious concerns about what the government is doing in our name and the extent of violations of American’s privacy and civil liberties. Documents released to the media about the NSA’s programs further raise critical questions about the scope of the US’s activities abroad, leading the President of Brazil and others to question whether the US’s programs breach international law.
This is not the first time that abuses of power have occurred when a government program operates in a bubble of secrecy with only limited oversight: similarly, Americans were outraged to learn that memos authored by the OLC during the Bush Administration approved interrogation methods that many equate to torture. Your release of these memos demonstrated a respect for the public’s right to know how the government interprets the law. Making a concrete commitment to the public’s right to legal interpretations on issues including the intelligence community’s surveillance programs and other controversial policies like targeted killing through the use of drones or other means would make this respect part of the administration’s legacy. While the government has an obligation to protect properly and appropriately classified information, democracy does not thrive when our national security programs and the intelligence community’s actions are shrouded in secrecy. The public must, at the very least, have a shared understanding of the bounds and limits of the laws of our land and be able to have an informed debate about our policies.
During the meeting of the Open Government Partnership in London, you have a unique opportunity to address this issue head-on on an international stage. By committing to give the public access to documents that significantly interpret laws, including – but not limited to—the Department of Justice’s legal interpretations and opinions by the Foreign Intelligence Surveillance Court (FISC), you can both address domestic concerns about our surveillance programs, and begin to rebuild trust with our international partners.
Thank you in advance for your attention to this issue of critical importance to transparent and accountable government. To discuss these issues in greater detail, please contact Patrice McDermott, Executive Director of OpenTheGovernment.org, at pmcdermott@openthegovernment.org or 202-332- 6736.
Sincerely,
American Booksellers Foundation for Free Expression American Civil Liberties Union
American Library Association
American Society of News Editors
Arab American Institute
ARTICLE 19
Bill of Rights Defense Committee
Brechner Center for Freedom of Information
Californians Aware
Center for Democracy and Technology
Center for Effective Government
Center for Media and Democracy
Citizens for Responsibility and Ethics in Washington – CREW The Constitution Project
Council on American-Islamic Relations – CAIR
Electronic Frontier Foundation
Electronic Privacy Information Center – EPIC
Essential Information
Federation of American Scientists
First Amendment Foundation
Government Accountability Project – GAP
Human Right Watch

iSolon.org
James Madison Project
Just Foreign Policy
Liberty Coalition
National Coalition Against Censorship
National Freedom of Information Coalition National Security Archive
No More Guantanamos
OpenTheGovernment.org
PolitiHacks
Project On Government Oversight – POGO
Public Citizen
Public Knowledge
Reporters Committee for Freedom of the Press Reporters Without Borders
Society of Professional Journalists
Sunlight Foundation
Tully Center for Free Speech at Syracuse University Understanding Government
Vermont Coalition for Open Government
Vermont Press Association
Washington Civil Rights Council
Win Without War

Intelligence community turns to Tumblr and Twitter to provide more transparency on NSA surveillance programs

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Yesterday afternoon, the Office of the Director of National Intelligence began tumbling towards something resembling more transparency regarding the National Security Agency’s electronic surveillance programs.

The new tumblog, “Intelligence Community on the Record,” is a collection of  statements, declassified documents, congressional testimony by officials, speeches & media, interviews, fact sheets, details of oversight & legal compliance, and video. It’s a slick, slim new media vehicle, at least as compared to many government websites, although much of the content itself consists of redacted PDFs and images. (More on that later.) It’s unclear why ODNI chose Tumblr as its platform, though the lack of hosting costs, youthful user demographics and easy publishing have to have factored in.

In the context of the global furor over electronic surveillance that began this summer when the Washington Post and Guardian began publishing stories based upon the “NSA Files” leaked by former NSA contractor Edward Snowden, the new tumblr has been met with a rather …skeptical reception online.

Despite its reception, the new site does represent a followthrough on President Obama’s commitment to set up a website to share information with the American people about these programs. While some people in the federal technology sector are hopeful:

…the site won’t be enough, on its own. The considerable challenge that it and the intelligence community faces is the global climate of anger, fear and distrust that have been engendered by a summer of fiery headlines. Despite falling trust in institutions, people still trust the media more than the intelligence community, particularly with respect to its role as a watchdog.

Some three hours after it went online, a series of new documents went online and were tweeted out through the new Twitter account, @IConTheRecord:

The launch of the website came with notable context.

First, as the Associated Press reported, some of the documents released were made public after a lawsuit by the Electronic Frontier Foundation (EFF). In a significant court victory, the EFF succeeded in prompting the release of a 2011 secret court opinion finding NSA surveillance unconstitutional. It’s embedded below, along with a release on DNI.gov linked through the new tumblr.

The opinion showed that the NSA gathered thousands of Americans’ emails before the court struck down the program, causing the agency to recalibrate its practices.

Second, Jennifer Valentino and Siobhan Gorman Carpenter reported at The Wall Street Journal that the National Security Agency can reach 75% of Internet traffic in the United States. Using various programs, the NSA applies algorithms to filter and gather specific information from a dozen locations at major Internet junctions around North America. The NSA defended these programs as both legal and “respectful of Americans’ privacy,” according to Gorman and Valentino: According to NSA spokeswoman Vanee Vines, if American communications are “incidentally collected during NSA’s lawful signals intelligence activities,” the agency follows “minimization procedures that are approved by the U.S. attorney general and designed to protect the privacy of United States persons.”

The story, which added more reporting to confirm what has been published in the Guardian and Washington Post, included a handy FAQ with a welcome section detailed what was “new” in the Journal’s report. The FAQ also has clear, concise summaries of fun questions you might still have about these NSA programs after a summer of headlines, like “What privacy issues does this system raise?” or “Is this legal?”

The NSA subsequently released a statement disputing aspects of the Journal’s reporting, specifically the “the impression” that NSA is sifting through 75% of U.S. Internet communications, which the agency stated is “just not true.” The WSJ has not run a correction, however, standing by its reporting that the NSA possesses the capability to access and filter a majority of communications flowing over the Internet backbone.

Reaction to the disclosures has fallen along pre-existing fault lines: critical lawmakers and privacy groups are rattled, while analysts point to a rate of legal compliance well above 99%, with now-public audits showing most violations of the rules and laws that govern the NSA coming when “roamers” from outside of the U.S.A. traveled to the country.

Thousands of violations a year, however, even if they’re out of more than 240,000,000 made, is still significant, and the extent of surveillance reported and acknowledged clearly has the potential to have a chilling effect on free speech and press freedom, from self-censorship to investigative national security journalism. The debates ahead of the country, now more informed by disclosures, leaks and reporting, will range from increased oversight of programs to legislative proposals to update laws for collection and analysis to calls to significantly curtail or outright dissolve these surveillance programs all together.

Given reports of NSA analysts intentionally abusing their powers, some reforms to the laws that govern surveillance are in order, starting with making relevant jurisprudence public. Secret laws have no place in a democracy.

Setting all of that aside for a moment — it’s fair to say that this debate will continue playing out on national television, the front pages of major newspapers and online outlets and in the halls and boardrooms of power around the country — it’s worth taking a brief look at this new website that President Obama said will deliver more transparency into surveillance programs, along with the NSA’s broader approach to “transparency”. To be blunt, all too often it’s looked like this:

…so heavily redacted that media outlets can create mad libs based upon them.

That’s the sort of thing that leads people to suggest that the NSA has no idea what ‘transparency’ means. Whether that’s a fair criticism or not, the approach taken to disclosing documents as images and PDFs does suggest that the nation’s spy agency has not been following how other federal agencies are approaching releasing government information.

As Matt Stoller highlighted on Twitter, heavily redacted, unsearchable images make it extremely difficult to find or quote information.

Unfortunately, that failing highlights the disconnect between the laudable efforts the Obama administration has made to release open government data from federal agencies and regulators and the sprawling, largely unaccountable national security state aptly described as Top Secret America.”

Along with leak investigations and prosecution of whistleblowers, drones and surveillance programs have been a glaring exception to federal open government efforts, giving ample ammunition to those who criticize or outright mock President Obama’s stated aspiration to be the “most transparent administration in history.” As ProPublica reported this spring, the administration’s open government record has been mixed. Genuine progress on opening up data for services, efforts to leverage new opportunities afforded by technology to enable citizen participation or collaboration, and other goals set out by civil society has been overshadowed with failures on other counts, from the creation of the Affordable Care Act to poor compliance with the Freedom of Information Act and obfuscation of the extend of domestic surveillance.

In that context, here’s some polite suggestions to the folks behind the new ODNI tumblr regarding using the Web to communicate:

  • Post all documents as plaintext, not images and PDFs that defy easy digestion, reporting or replication. While the intelligence budget is classified, surely some of those untold billions could be allotted to persons taking time to release information in both human- and machine-readable formats.
  • Put up a series of Frequently Asked Questions, like the Wall Street Journal’s. Format them in HTML. Specifically address that reporting and provide evidence of what differs. Posting the joint statement on the WSJ stories as text is a start but doesn’t go far enough.
  • Post audio and plaintext transcripts of conference calls and all other press briefings with “senior officials.” Please stop making the latter “on background.” (The transcript of the briefing with NSA director of compliance John DeLong is a promising start, although getting it out of a PDF would be welcome.
  • Take questions on Twitter and at questions@nsa.gov or something similar. If people ask about programs, point them to that FAQ or write a new answer. The intelligence community is starting behind here, in terms of trust, but being responsive to the public would be a step in the right direction.
  • Link out to media reports that verify statements. After DNI Clapper gave his “least untruthful answer” to Senator Ron Wyden in a Congressional hearing, these “on the record” statements are received with a great deal of skepticism by many Americans. Simply saying something is true or untrue is unlikely to be received as gospel by all.
  • Use animated GIFs to communicate with a younger demographic. Actually, scratch that idea.