OK


This Review Panel Report on the NSA, looks like a serious attempt to curtail and correct some rather serious problems, routinely practiced by the NSA, and the secret FISA Court that in theory, "oversees" their activities.

We'd be wise to know what the Report is recommending.  We'd be wise to advocate that most of it, actually happens.


Here are the Top Five Recommendations for "fixing the NSA" -- out a of 46 total.  Better get that second cup of coffee brewing ...


Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies

12 December 2013

[pg 24]

Recommendations

Recommendation 1

We recommend that section 215 should be amended to authorize the Foreign Intelligence Surveillance Court to issue a section 215 order compelling a third party to disclose otherwise private information about particular individuals only if:

   (1) it finds that the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

   (2) like a subpoena, the order is reasonable in focus, scope, and breadth.


Recommendation 2

We recommend that statutes that authorize the issuance of National Security Letters should be amended to permit the issuance of National Security Letters only upon a judicial finding that:

   (1) the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

   (2) like a subpoena, the order is reasonable in focus, scope, and breadth.

[pg 25]

Recommendation 3

We recommend that all statutes authorizing the use of National Security Letters should be amended to require the use of the same oversight, minimization, retention, and dissemination standards that currently govern the use of section 215 orders.


Recommendation 4

We recommend that, as a general rule, and without senior policy review, the government should not be permitted to collect and store all mass, undigested, non-public personal information about individuals to enable future queries and data-mining for foreign intelligence purposes. Any program involving government collection or storage of such data must be narrowly tailored to serve an important government interest.


Recommendation 5

We recommend that legislation should be enacted that terminates the storage of bulk telephony meta-data by the government under section 215, and transitions as soon as reasonably possible to a system in which such meta-data is held instead either by private providers or by a private third party. Access to such data should be permitted only with a section 215 order from the Foreign Intelligence Surveillance Court that meets the requirements set forth in Recommendation 1.
[...]


Those serious to-the-point recommendations for Fixing the NSA continue HERE ... Read all about it ... if you dare.


Remember that secret FISA Court (FISC), that supposedly oversees the "constitutionality" of the NSA mass-surveillance activities -- BUT in actually practice, acts as a "rubber stamp" for the NSA instead?  ... Well the Review Panel has some Recommendations for "fixing the FISC" too. (Recommendation 28.)

Starting with removing the cloak of secrecy, and ending with adding adversarial lawyers, who will argue for the interests of the Public, in opposition to the interests of the NSA. Currently the secret FISA Court, has no such opposing voice.

[pg 200]

D. Reforming the FISA Court

Recommendation 28

We recommend that:

  (1) Congress should create the position of Public Interest Advocate to represent privacy and civil liberties interests before the Foreign Intelligence Surveillance Court;

  (2) the Foreign Intelligence Surveillance Court should have greater technological expertise available to the judges;

  (3) the transparency of the Foreign Intelligence Surveillance Court’s decisions should be increased, including by instituting declassification reviews that comply with existing standards; and

  (4) Congress should change the process by which judges are appointed to the Foreign Intelligence Surveillance Court, with the appointment power divided among the Supreme Court Justices.

[pg 202]

[...] As illustrated by the section 215 and section 702 non-compliance incidents discussed in chapters III and IV of this Report, the FISC takes seriously its responsibility to hold the government accountable for its errors.

We believe that reform of the FISC in the following areas will strengthen its ability to serve the national security interests of the United States while protecting privacy and civil liberties and promoting greater transparency.

  (a) Establishing a Public Interest Advocate. Our legal tradition is committed to the adversary system. When the government initiates a proceeding against a person, that person is usually entitled to representation by an advocate who is committed to protecting her interests. If it is functioning well, the adversary system is an engine of truth. It is built on the assumption that judges are in a better position to find the right answer on questions of law and fact when they hear competing views. [...]

[pg 205]

  (b) Bolster Technological Capacity. The recently published opinions of the FISC make evident the technological complexity of many of the issues that now come before it. The compliance issues involving section 215 and 702 illustrate this reality and the extent to which it is important for the FISC to have the expertise available to it to oversee such issues. Rather than relying predominantly on staff lawyers in its efforts to address these matters, the FISC should be able to call on independent technologists, with appropriate clearances, who do not report to NSA or Department of Justice. One approach would be for the FISC to use the court-appointed experts; another would be for the FISC to draw upon technologists who work with the CLPP Board.

[pg 205]

  (c) Transparency. The US Government should re-examine the process by which decisions issued by the FISC and its appellate body, the Foreign Intelligence Surveillance Court of Review (FISC-R) are reviewed for robust and regimented process of declassification of decisions to improve
transparency.
[...]

The very idea of the rule of law requires a high degree of transparency. Transparency promotes accountability. As Justice Louis Brandeis once observed, sunlight can be “the best of disinfectants.”[168] A lack of transparency can also breed confusion, suspicion, and distrust. In judicial opinions are made available for public scrutiny and inspection. Indeed, the ODNI has declassified a considerable number of FISC opinions in 2013, making the determination that the gains from transparency outweighed the risk to national security.
[...]

[pg 207]

  (d) Selection and Composition of the FISC. Under FISA, the judges on the FISC are selected by the Chief Justice of the United States. In theory, this method of selection has significant advantages. Concentration of the power of appointment in one person can make the process more orderly and organized. But that approach has drawn two legitimate criticisms.

The first involves the potential risks associated with giving a single person, even the Chief Justice, the authority to select all of the members of an important court. The second involves the fact that ten of the eleven current FISC judges, all of whom were appointed by the current Chief Justice, were appointed to the federal bench by Republican presidents. Although the role of a judge is to follow the law and not to make political judgments, Republican-appointed and Democratic-appointed judges sometimes have divergent views, including on issues involving privacy, civil liberties, and claims of national security. There is therefore a legitimate reason for concern if, as is now the case, the judges on the FISC turn out to come disproportionately from either Republican or Democratic appointees.

There are several ways to respond to this concern. We recommend allocating the appointment authority to the Circuit Justices. Under this approach, each member of the Supreme Court would have the authority to select one or two members of the FISC from within the Circuit(s) over which she or he has jurisdiction. This approach would have the advantage of dividing appointment authority among the Court’s nine members and reducing the risks associated with concentrating the appointment power in a single person.


Last, but not least -- the final Panel Recommendation (46), turns towards establishing some "serious financial metrics" as a way to retroactively monitor and assess, just how well (or NOT) these intrusive NSA techniques are "working."  Because if it's not working, they seem to saying, we should damn-well FIX IT!

I think we used to call this principle:  "Getting our Bang for the Buck."  

Uh oh, NSA. LOOK OUT, if this one gets enacted (most likely by Executive Order.)

[... pg 257]

Recommendation 46

We recommend the use of cost-benefit analysis and risk-management approaches, both prospective and retrospective, to orient judgments about personnel security and network security measures.

In our statement of principles, we have emphasized that in many domains, public officials rely on a careful analysis of both costs and benefits. In our view, both prospective and retrospective analysis have important roles to play in the domain under discussion, though they also present distinctive challenges, above all because of limits in available knowledge and challenges in quantifying certain variables. In particular, personnel security and network security measures should be subject to careful analysis of both benefits and costs (to the extent feasible).
[...]


I hope this sparks your curiosity to actually click the link and browse through the Report yourself.

In my opinion, this is the "progress" we've been looking for, been asking for.  Granted it's not Everything we might want, BUT it's not Nothing either.

This serious Review Report definitely should NOT go by the Congressional wayside, like so many similar review reports before it.

Not if the Constitution actually still matters to us, in practice, and in theory.



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