NSA's Internet Surveillance Program is Constitutional, Obama's Panel of Experts Insists
By: Nicholas Kamm
A five-person panel handpicked by US President Barack Obama concluded Tuesday that the National Security Agency’s use of a Foreign Intelligence Surveillance Act provision to spy on non-Americans is not unjust.
Nevertheless, the Privacy and Civil Liberties Oversight Board’s findings — published late Tuesday in a 196-page pre-release report that was approved by the panel early Wednesday — did acknowledge that substantial flaws exist in the way the NSA uses Section 702 of the FISA Amendments Act to conduct surveillance against not US-persons believed to be located abroad.
By relying on that provision, government officials with proper standing can query vast databases of intelligence captured from the internet by the NSA’s systems when pursuing foreign targets. Internet Service Providers compelled with Sec. 702 requests from the proper authorities, the report reads in part, are mandated to private the government with the communications sent to, from and about particular foreign targets.
Unlike an earlier report from the group that found the NSA’s use of the Patriot Act’s Section 215 to collect telephony metadata to be largely unconstitutional, the latest findings concerning Sec. 702 of the FAA mostly fell in line with the Obama administration’s arguments that the American intelligence community has not acted beyond its intended scope.
“The Section 702 program is extremely complex, involving multiple agencies, collecting multiple types of information, for multiple purposes,” the panel wrote in the summary of the report. “Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence.”
“The program has operated under a statute that was publicly debated, and the text of the statute outlines the basic structure of the program,” the Obama-picked experts continued. “Operation of the Section 702 program has been subject to judicial oversight and extensive internal supervision, and the Board has found no evidence of intentional abuse.”
Both the Sec. 215 and Sec. 702 programs have come under attack in the nearly 13 months since Edward Snowden, a former NSA contractor, leaked classified documents showing how the US intelligence community interpreted these laws in secret to collect massive amounts of data on persons around the globe.
In January, the same panel said that the NSA’s use of Sec. 215 has a “chilling effect on the exercise of First Amendment rights” and, contrary to its proponents’ claims, proved ineffective with regards to thwarting any terrorist attacks plotted against the US.
Although this week’s findings concerning Sec. 702 were largely positive, the PCLOB did not shy away from acknowledging that “certain aspects of the program’s implementation raise privacy concerns,” including “the scope of the incidental collection of US persons’ communications and the use of queries to search the information collected under the program for the communications of specific US persons.”
Despite finding the NSA not particularly at fault, the panel admitted that particular aspects of the surveillance push the programs "close to the line of constitutional reasonableness."
In one part, for example, the authors of the report note that the communications of law-abiding US persons are indeed collected on accident by the NSA through the use of Sec. 702 on occasion.
“Although US persons may not be targeted under Section 702, communications of or concerning US persons may be acquired in a variety of ways,” a portion of the report reads. “An example is when a US person communicates with a non-US person who has been targeted, resulting in what is termed ‘incidental’ collection. Another example is when two non-US persons discuss a US person. Communications of or concerning US persons that are acquired in these ways may be retained and used by the government, subject to applicable rules and requirements. The communications of US persons may also be collected by mistake, as when a US person is erroneously targeted or in the event of a technological malfunction, resulting in ‘inadvertent’ collection. In such cases, however, the applicable rules generally require the communications to be destroyed.”
The nearly 300-page report offers detailed explanations of how the US intelligence community uses Sec. 702 in two specific ways to collect intelligence — the PRISM program first exposed last year by Mr. Snowden, and the “upstream” collection process that pulls digital data from the internet’s backbone providers while still in transit.
With respect to just upstream collections, the NSA acquires around 26.5 million internet transactions annually, the report confirms.
Upon release of the PCLOB report, the Electronic Frontier Foundation published a scathing response attacking the board’s failure to find fault with the upstream collection process.
“The board skips over the essential privacy problem with the 702 upstream program: that the government has access to or is acquiring nearly all communications that travel over the Internet,” EFF legal director Cindy Cohn wrote. “The board focuses only on the government’s methods for searching and filtering out unwanted information. This ignores the fact that the government is collecting and searching through the content of millions of emails, social networking posts, and other Internet communications, steps that occur before the PCLOB analysis starts.”
Although the board has provided a list of recommendations to the White House intended to remediate privacy concerns, Cohn further suggested that those options fall short of being a final solution.
"The PCLOB's proposed reforms for Section 702 are an anemic set of recommendations that will do little to stop excessive surveillance," Cohn wrote. "The government's collection and search of Americans' communications without a warrant or individually approved court order is barred by the Constitution and must be stopped."
On its part, the board acknowledged that the "unknown and potentially large scope of the incidental collection of U.S. persons' communications” raised concerns.
James Clapper, the US director of national intelligence, hailed the board’s report and wrote that it confirms Sec. 702 “has shown its value in preventing acts of terrorism at home and abroad, and pursuing other foreign intelligence goals.”
“We take very seriously the board’s concerns regarding privacy and civil liberties, and we will review the board’s recommendations with care,” he wrote.