Adding momentum to the calls for reigning in NSA surveillance from civil society, business groups and Congress, last week Obama’s Review Group on Intelligence and Communications Technology released its report on government surveillance and security practices. President Obama commissioned the Review Group in August in response to the global political outrage created by NSA whistleblower Edward Snowden’s revelations about U.S. mass surveillance.
In principle, the Review Group agreed with Snowden that NSA spying is currently violating the privacy of U.S. and non-U.S. persons and that reforms are needed. While Obama has promised a formal response to the 46 recommendations in January, he is “open to many” of the suggestions. The Review Group’s recommendations to end the bulk collection of telephone metadata, reform the use of national security letters, strengthen cybersecurity and encryption, and provide additional back end protection for PRISM surveillance are welcomed by civil liberties groups including DDF. However, there are some recommendations that overlook known problems.Below is discussion of some of the most salient proposals of concern for civil liberties.
The Review Group proposes that NSA’s bulk collection of phone records under Section 215 of the Patriot Act be ‘terminated as soon as reasonably practicable’. That is an excellent step but it leaves unaddressed dragnet collection of emails, chats and other electronic communications that we all rely on. Americans needs full protection of their Fourth Amendment rights to privacy in order to safeguard their First Amendment right to free speech.”
Notably, the report was released one day after a meeting between Obama and tech company executives who published a statement calling for surveillance reform due to concerns about the impact N.S.A. programs are having on consumer trust and thus their business revenue. “Recent revelations about government surveillance activities have shaken the trust of our users, and it is time for the United States government to act to restore the confidence of citizens around the world,” said Marissa Meyer, CEO of Yahoo.
Also of concern to tech companies as well as individuals, the Review Group advocates prohibiting the NSA from asking companies to insert “back doors” in American hardware or software, a secret way into them to manipulate computers, or to purchase previously unknown flaws in software that it can use to conduct cyberattacks.
Another big issue for civil libertarians, the Review Group recommended a set of reforms to Section 215 of the Foreign Intelligence Surveillance Act (FISA). Currently, the FISA court hears arguments only from the Justice Department, and Chief Justice John G. Roberts Jr. has ‘unilateral power to select its members’. Claiming concern about promoting citizen confidence, the report advises a “public interest advocate to represent the interests of privacy and civil liberties” and that the power to select judges for the surveillance court should be distributed among all the Supreme Court justices.
To narrow the scope of spying, the report suggests that NSA only be allowed access to data if a FISA Court judge can be persuaded that the information request is reasonable in scope, breath and focus and is relevant to a legal terrorism investigation. This is a substantial improvement to the current dragnet practice. However, while the Review Group wants data to be maintained at phone companies or a private third party instead of by NSA hands, DDF’s view is that mass data gathering still infringes on constitutional freedoms regardless of who is holding the data; the chilling effect remains. The Review Group also recommends reforms to Section 702 of FISA which currently gives the government legal authority to demand that communications companies release the contents of communications of ‘persons reasonably believed to be abroad’.
Currently, this sweeps in data about U.S. and non-U.S. persons. For U.S. persons (U.S. citizens or lawful permanent residents), the recommendations propose a significant narrowing of the scope of data collected under 702, would require judicial authorization for pursuing that data and prevent any information obtained from being used in a criminal investigation.
Recognizing “respect for personal privacy and human dignity” as described the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, the Review Group also advised improving privacy rights for non-U.S. persons by limiting surveillance to lawful activities ‘directed exclusively at the national security of the United States or our allies’ and would prohibit targeting of any non-U. S. based solely on that person’s political views or religious convictions. One area where the Review Group fell short
National Security Letters
Characterized as ‘a surprisingly refreshing and far-reaching recommendation’ by the Center for Democracy and Technology, the Review Group effectively recommends that National Security Letters (NSL) be eliminated and replaced by judicial authorization. Under current practice, NSLs are issued by the FBI or another intelligence agency demanding that private information be released for investigative purposes.
The use of NSLs has been problematic because they are issued with very low standard of proof of relevance for highly sensitive data (phone call records, some Internet records, bank records, credit information and more) without a warrant and with a gag order that makes it a crime for the NSL recipient i.e. a phone company or email provider to publicly disclose that an NSL was received or a disclosure was made under it. Instead, the Review Group recommends replacing NSLs with court orders issued by FISA court judges and that NSL recipients e.g. Google be able to release broad information about NSLs to the public. Again you can see tech company concerns are well represented in the recommendations.
The New York Times noted that ‘if Obama adopts the majority of the recommendations, it would mark the first major restrictions on the unilateral powers that the N.S.A. has acquired since the Sept. 11 terrorist attacks.’ DDF encourages President Obama to implement the suggested reforms as good first steps toward restoring the constitutional freedoms which have been seriously eroded since 9-11 and which must always be vigorously defended in any historical period.