Groups Slam ‘Weak’ Privacy Board Report Finding Web Surveillance Program Lawful

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By Alexei Alexis  

July 2 --Groups pushing for legislation to rein in the National Security Agency's Internet surveillance activities criticized a report on the topic approved July 2 by the Privacy and Civil Liberties Oversight Board (PCLOB).

Jameel Jaffer, deputy legal director at the American Civil Liberties Union, said in a July 2 statement that the report is “weak” and “fails to fully grasp the civil liberties and human rights implications of permitting the government sweeping access to the communications of innocent people.”

According to the report, the NSA was legally authorized under Section 702 of the Foreign Intelligence Surveillance Act to implement the program targeting the electronic communications of non-U.S. citizens.

Nothing Illegal

The board found “no trace” of illegal activity in the program “or any attempt to intentionally circumvent legal limits,” the report said.

“The board unanimously said this is a program that goes right up to the line of constitutionality,” David Medine, chairman of the panel, told reporters July 2. Medine is a former Wilmer Cutler Pickering Hale and Dorr LLP attorney and former Federal Trade Commission official who served during the administration of President Bill Clinton.

The five-member privacy panel, appointed by President Barack Obama and confirmed by the U.S. Senate, has no authority to change the programs and can only make recommendations.

Although the program is legal and effective, more detailed explanations should be provided by the U.S. to justify that information sought relates to a “foreign intelligence purpose,” PCLOB said in the report. The report's recommendations stopped short of including a call for legislative action.

Kevin Bankston, policy director of New America's Open Technology Institute, said in a July 2 statement that the report is particularly disappointing compared with one released by the board earlier this year.

On Jan. 23, PCLOB issued a report concluding that the NSA engaged in the bulk collection of U.S. phone company customer records without legal authorization (13 PVLR 164, 1/27/14). The Obama administration had justified the program under Section 215 of the USA PATRIOT Act.

“If the Board's last report on the bulk collection of phone records was a bombshell, this one is a dud,” Bankston said.

Backdoor Searches

Jaffer said that it was “jarring” to read the report just weeks after the House approved an appropriations bill (H.R. 4870) with language designed to prohibit backdoor searches of Americans' communications (13 PVLR 1154, 6/30/14) and just days after the U.S. Supreme Court handed a major victory to privacy advocates in ruling that police generally need a warrant to conduct searches of arrestees' mobile phones (13 PVLR 1165, 6/30/14).

“The board unanimously said this is a program that goes right up to the line of constitutionality.”  
David Medine, Chairman,
Privacy and Civil Liberties Oversight Board

Rep. Zoe Lofgren (D-Calif.), a sponsor of the appropriations amendment, said in a July 2 statement provided to Bloomberg BNA that although the efforts of PCLOB detailed in its new report are appreciated, “there are still many unanswered questions as to how the 702 database is compiled.”

She said that it is “abundantly clear” that a warrant is required for the collection of information about “U.S. persons.”

Sen. Ron Wyden (D-Ore.) and other lawmakers have expressed concern that the government is doing what amounts to secret backdoor searches of the communications of U.S. citizens.

The NSA, Federal Bureau of Investigation and Central Intelligence Agency have queried the database for e-mails and other Web activity of U.S. citizens to locate information related to potential terrorist plots, Deirdre Walsh, director of legislative affairs for the Office of Director of National Intelligence, wrote in a June 27 letter to Wyden in response to questions he raised at a June 5 hearing of the Senate Intelligence Committee .

“The queries in question are lawful, limited in scope and subject to oversight,” and “there is no loophole in the law,” Walsh wrote in the letter, which was released by Wyden's office June 30.

Some Board Members Seek More

Medine and board member Patricia M. Wald, a retired U.S. Court of Appeals for the District of Columbia Circuit judge, issued a statement July 2 calling for additional measures. Communications information collected on U.S. persons should be purged of information that doesn't meet the statutory definition of foreign intelligence information relating to U.S. persons, and the process should be subject to judicial oversight, the statement said.

In addition, each U.S. person identifier should be submitted to the Foreign Intelligence Surveillance Court for approval before the identifier may be used to query data collected under Section 702, for a foreign intelligence purpose, “other than in exigent circumstances or where otherwise required by law,” the statement said.

While the statement didn't call for legislative action, Medine said that he wasn't necessarily opposed to the option.

“We concluded that there should be prior court approval for U.S. person queries,” Medine told Bloomberg BNA July 2 after the board vote.

“Whether that's accomplished through legislation or administration efforts is not critical to us,” he said.


With the assistance of Chris Strohm in Washington

To contact the reporter on this story: Alexei Alexis in Washington at

To contact the editor responsible for this story: Donald G. Aplin at

The PCLOB report, “Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act,” is available at

Full text of the June 27 letter to Wyden is available at

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