After delivering a well-deserved blow to the NSA’s 215 domestic surveillance program the Privacy and Civil Liberties Board (PCLOB) fell flat on its face this morning and released a report endorsing the NSA’s 702 program. The report is a massive fail at protecting privacy. In what should be considered a huge understatement the board reports:
…certain aspects of the Section 702 program push the program close to the line of constitutional reasonableness. Such aspects include the unknown and potentially large scope of the incidental collection of U.S. persons’ communications, the use of “about” collection to acquire Internet communications that are neither to nor from the target of surveillance, and the use of queries to search for the communications of specific U.S. persons within the information that has been collected.The board endorses the NSA’s practice of collecting information from the “telecommunications backbone” including telephone calls and internet communications. These are nothing less than a modern version of the British general warrants that the Revolutionary War was fought over. The board recommends a review of agency procedures to minimize the collection of U.S. persons information but, to quote the Supreme Court’s decision in Riley last week, “the Founders did not fight a revolution to gain the right to government agency protocols.”
The PCLOB’s endorsement of mass surveillance to protect security is wildly misplaced. NSA whistleblowers like Thomas Drake have shown time and time again that it's possible to protect privacy and obtain the intelligence we need to keep the country safe. A 2004 DOD IG report on the Thinthread program confirms this view.
The PCLOB report also disingenuously obscures the legal history of the PRISM and upstream programs by proudly proclaiming that both programs operate within the legal authorities granted by section 702 of the FISA Amendments Act (FAA). What the report cursorily glosses over is that versions of both programs have been running since 2001—seven years before the FAA was passed. Under what legal authority did these programs operate? We can only guess.
Additionally, as the EFF’s response the PCLOB report points out, the report glosses over what should be a central issue to the legal analysis of these programs: the fact that the 4th amendment requires a warrant before the government may search the contents of a communication. Instead of grabbing the 4th amendment issue by the horns, PCLOB extolls the virtues of government “minimization” procedures, which essentially amount to shifting oversight duties from the courts to the NSA itself. This reliance on internal agency procedure is fundamentally out of step with modern 4th amendment jurisprudence and against the current tide of Supreme Court opinion. Recent decisions preventing the warrantless placement of a GPS device on a person’s car and last week’s decision requiring the police to obtain a warrant before looking at the data on your cellphone make it clear the tide is turning towards privacy and against government intrusion.
The PCLOB is about to wade into deeper and darker waters and issue a report later this year on the surveillance conducted under the President’s own authority via Executive Order 12333. As one of the few organizations tasked with overseeing the intelligence agencies specifically to protect our civil liberties and constitutional rights it simply must do better.