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Experts Debate Legal Questions Surrounding U.S. Surveillance Efforts

Wednesday, July 10, 2013

By Alexei Alexis  

 

The legality of recently disclosed U.S. government surveillance activities was debated at a July 9 public workshop convened by the Privacy and Civil Liberties Oversight Board (PCLOB).

Among other questions, the PCLOB heard feedback from experts on the scope of Section 215 of the PATRIOT Act, a so-called business records provision that was used by the government to justify the bulk collection of U.S. customer phone data.

“I think it's pretty clear that, until this past month, the American people had no idea that Section 215 ... was being used to collect all of telephony 'metadata' on Americans' phone calls,” said Kate Martin, director of the Center for National Security Studies, an advocacy group in Washington.

Agency Report Expected

At the end of the workshop, PCLOB Chairman David Medine said the agency will use input provided at the event to prepare a report for the White House and Congress.

Meanwhile, the Electronic Privacy Information Center July 8 filed a petition with the U.S. Supreme Court seeking a review of whether the secret Foreign Intelligence Surveillance Court (FISC) exceeded its “narrow” statutory authority by issuing a sweeping order that required Verizon Communications Inc. to disclose records to the National Security Agency.

In the wake of recent press reports, the administration has acknowledged using Section 215 to gather vast amounts of metadata related to Americans' phone calls, such as numbers dialed. The administration has also confirmed the existence of a controversial web-monitoring program, known as PRISM, which was authorized under Section 702 of the Foreign Intelligence Surveillance Act.

Privacy Concerns Raised

Senate Judiciary Chairman Patrick Leahy (D-Vt.) and House Judiciary ranking member John Conyers (D-Mich.) are among members of Congress who have called for legislative action to address privacy concerns related to the programs.

President Obama has vigorously defended the surveillance programs and has said he welcomes a debate over the issue. After a June 21 meeting with the president, the PCLOB issued a statement saying that it was undertaking a review of the programs as a top priority.

As part of the effort, the board said it was scheduling a full-day public workshop to seek input from invited experts, academics, and advocacy organizations about the legal bases for the administration's programs and potential options to address privacy and civil liberties concerns.

Relevance Standard Debated

Section 215 allows the FBI to compel U.S. businesses to turn over “any tangible thing” that is relevant to a terrorism investigation, when an FISC order has been presented.

Steven Bradbury, a former Department of Justice official during the George W. Bush administration, told the PCLOB that relevance is a concept that is applied broadly in various law enforcement contexts, including federal grand jury investigations.

“I think it's reasonable [to conclude] that that's what was incorporated into [Section 215],” he said.

However, Jameel Jaffer, American Civil Liberties Union deputy legal director, argued that the bulk collection of Americans' phone records goes way beyond the type of activity that Congress intended under Section 215.

“Everybody agrees that relevance is supposed to be” limited, he said.

The PCLOB also heard feedback about whether there is a need to make FISC proceedings more transparent and accessible to the public.


The EPIC petition is available at http://epic.org/EPIC-FISC-Mandamus-Petition.pdf.

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