The PCLOB’s Recommendations for a More Reasonable Surveillance Program
By Max Kwon – Edited by Sarah O’Loughlin
Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act
On July 2, 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) issued a report analyzing the legal and policy implications of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”). Section 702 was introduced by Congress through the FISA Amendments Act of 2008 and allows the Attorney General and the Director of National Intelligence to “jointly authorize surveillance targeting persons who are not U.S. persons, and who are reasonably believed to be located outside the United State, with the compelled assistance of electronic communication service providers, in order to acquire foreign intelligence information.” Report at 6. The PCLOB concluded that “the core Section 702 program is clearly authorized by Congress, reasonable under the Fourth Amendment, and an extremely valuable and effective intelligence tool,” Id. at 15, but noted that “the applicable rules potentially allow a great deal of private information about U.S. persons to be acquired by the government.” Id. at 11. In order to “ensure that the program remains tied to its constitutionally legitimate core,” the PCLOB outlined a set of ten policy proposals aimed at increasing accountability, transparency, and efficacy of the surveillance program. Id. at 9.
Pursuant to Section 702, the Attorney General and Director of National Intelligence can make annual certifications that identify categories of information to be collected without specifying the particular non-U.S. persons who will be targeted. Id. Although Section 702 requires the government to develop targeting and “minimization” procedures in order minimize “incidental” or “inadvertent” surveillance of U.S. persons, the PCLOB stated that “certain features of the [Section 702] program implicate privacy concerns” regarding the scope and usage of U.S. person communications that are collected. Id. at 6–10.
Many of the privacy concerns regarding Section 702 surveillance stem from the two methods that the government can use to acquire information, namely, “PRISM” collection and “upstream” collection. In PRISM collection, the government sends a particular “selector,” such as an email address or telephone number associated with targeted persons, to a United States-based electronic communications service provider. Id. at 7. The provider is then “compelled to give the communications sent to or from that selector to the government.” Id. The National Security Agency (“NSA”) receives all of this data and select portions of the data are passed on to the Central Intelligence Agency (“CIA”) and the Federal Bureau of Investigation (“FBI”). Id. In upstream collection, the government compels the assistance of telecommunications providers. Id. The information collected includes both Internet communications and telephone calls and is received only by the NSA. Id. Notably, upstream collection also includes the acquisition of (1) “about” communications, information about the targeted person even if the targeted person is not a participant of the communication, and (2) “multiple communications transactions” (“MCTs”), an Internet transaction that is composed multiple parts or communications. Id. The NSA is allowed to obtain the entire MCT so long as a single part is “to, from, or ‘about’ a tasked selector, and if one end of the transaction is foreign.” Id.
In order to “ward against the exploitation of information acquired under the program for illegitimate purposes,” the Board issued recommendations addressing various concerns, such as targeting and tasking, U.S. person queries, upstream and “about” collection, accountability, transparency, and efficacy. Id. 11–12.The recommendations range from revising procedures to include written explanations for targeting selectors to periodically assessing whether filtering techniques applied in upstream collection are effectively preventing “inadvertent collection of domestic communications.” Id.
Although the Board unanimously concluded that the core program of Section 702 is both reasonable and valuable, it appears that public reception of the report is not as unanimous. According to ArsTechnica, the PCLOB’s report appears to be “largely condemned by civil liberties advocates and scholars,” including Elizabeth Goitein, director of the Liberty and National Security Program at the Brenna Center for Justice. The Huffington Post also reports similar criticism.
A summary of the history surrounding the report is available on Wired and commentary on how the PCLOB’s recommendations affect international human rights issues can be found on Lawfare. Josh Gerstein analyzes the potential political tensions within the PCLOB on Politico.