The civil liberties community, which had lobbied hard for the creation of the Privacy and Civil Liberties Oversight Board got a slap in the face today when the Board issued a report on one of the NSA’s mass surveillance programs, and failed to suggest sensible reforms to protect privacy.
Under Section 702 of the FISA Amendments Act, the NSA scoops up massive amounts of phone calls and emails directly from the communications providers. And this data includes the content of your phone calls, emails, facebook posts and the like. Although they are not supposed to target U.S. persons or people in the U.S., in reality, they do (Read more about how the NSA uses 702 here).
Despite the fact that the NSA is sweeping up our communications without an individualized warrant, the PCLOB did not step to the plate with solid recommendations to protect the privacy of Americans, much less non-Americans. Here’s what our allies are saying: The Electronic Privacy Frontier Foundation: Flawed Oversight Board Report Endorses General Warrants
“The Privacy and Civil Liberties Oversight Board (PCLOB) issued a legally flawed and factually incomplete report late Tuesday that endorses Section 702 surveillance. 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.”
American Library Association: When the watchdog whimpers: new report proposes no legal fixes for NSA’s warrantless “702” surveillance program
“While we respect the Board’s efforts, its recommendations are a serious disappointment. Weaker than many Congressional calls for action to reform Section 702 from across the political spectrum, and at odds in part with respected jurists, PCLOB’s recommendations should be considered an absolute floor for 702 reform and a spur to immediate and broad legislative expansion. ALA’s 57,000 members will continue to fight for nothing less.” — ALA Washington Office executive director, Emily Sheketoff
“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.” — Policy Director Kevin Bankston
Center for National Security Policy:
“The PCLOB’s lengthy and detailed report on section 702 surveillance is a useful addition to the public debate on the powers Congress granted the NSA in 2008. ” But it is very disappointing that three of the Board members did not follow the lead of the Chair of the Board and Judge Wald to grapple with the profound privacy and Fourth Amendment issues created by this program. “The program authorizes the NSA to seize millions of communications a year from internet and telephone facilities in the United States. Many of those communications have one end inside the United States; some of them are wholly domestic to domestic communications. And once the government has seized the communications, it is permitted to search the massive databases created by the collection specifically for communications by or about Americans as well as in other ways that will undoubtedly generate information about Americans. “The seizures raise profound Fourth Amendment problems. These communications are seized without any warrant or even warrant-like process; without any determination of probable cause; without any suspicion of wrong-doing, and in violation of the Constitution’s ban on general searches. Instead the government simply certifies to the FISC court that it is “targeting” a foreign individual, group or government located overseas in order to obtain foreign intelligence information.”
“This is a weak report that fails to fully grasp the civil liberties and human rights implications of permitting the government sweeping access to the communications of innocent people. It is jarring to read this report just weeks after the House voted to limit the NSA’s ‘backdoor’ searches, and just days after the Supreme Court’s cell-phone-search decision defending privacy rights in the digital age. The Supreme Court, Congress, and the American people have recognized the need for fundamental reform. It is disappointing that the board’s report does not.” — Deputy Legal Director Jameel Jaffer