An independent oversight panel appointed by the White House has found that the NSA’s online data collection program is both legal and effective:
As the NSA’s troves of ostensibly foreign emails and Americans’ international communications come under heavy scrutiny, the Privacy and Civil Liberties Oversight Board dealt the NSA a victory on Tuesday night by calling the information reaped “valuable”. It pointedly rejected similar claims for the bulk collection of US call data in a January report. Under the so-called “702 program” – named after section 702 of the Fisa Amendments Act of 2008 – the NSA can harvest large amounts of ostensibly foreign digital information, including Americans’ international communications.
But the board did question the NSA’s intrusion into Americans’ data and recommended limits to the government’s ability to access large amounts of American communications data that the NSA inevitably collects and searches through without a warrant.
The Electronic Frontier Foundation is less than thrilled with the report:
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.
The foundation also slams the panel for not taking a firmer stand on whether government agencies need warrants to search Americans’ communications:
The Fourth Amendment requires a warrant for searching the content of communication. Under Section 702, the government searches through content without a warrant. Nevertheless, PCLOB’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.
Although they have few qualms about the data collection itself, the Bloomberg editors favor a warrant requirement:
A lot of regulations cover the use of these data. But the NSA asserts that, once collected, it can be lawfully searched by its agents and others. The Central Intelligence Agency conducted about 1,900 queries of such information in 2013. The Federal Bureau of Investigation, alarmingly, says it doesn’t track how often it accesses the communications of Americans gathered under this program but “believes the number of queries is substantial.” In fact, the report says that the government has no idea how much data it collects on Americans, and it notes that the rules “potentially allow a great deal of private information about U.S. persons to be acquired.”
The board was split on exactly how to treat that information, an issue that gets pretty complicated. But the bottom line is this: If intelligence agencies are intentionally sifting through these data for the content of specific Americans’ communications, they should get a warrant — except in emergencies — just as the Constitution requires in all other cases.
This was the standard recommended by the president’s NSA review panel in December. And it’s the standard the House of Representatives voted to affirm last month. The Senate should do the same.
And Susan Crawford pivots from the report to make the case for stronger judicial oversight:
What’s needed now is better oversight by the FISA court. That means Congress needs to expand the court’s authority. The PCLOB report makes clear that the FISA court is being informed about the procedures that the surveillance authorities are following with respect to broad categories of foreign intelligence information. But that’s it. The court does not otherwise exercise any judicial review over the substance of these programs.
Surveillance will inevitably continue. An overly timid NSA would not serve domestic or foreign interests. But the court needs to double-check that federal agencies don’t overstep their legal limits on targeted surveillance. In this murky context, the FISA court remains at a distinct disadvantage when attempting to balance national security and privacy interests.
The Dish 