[bestbits] Update on NSA reform/PCLOB reports

[Deborah Brown]

Dear all,

There are a few developments from the U.S. that may be of interest (and I
don't think have been circulate here yet):

   - President Obama is expected to make a major speech on NSA reform this
   Friday (17 January) at 11:00 EST (time TBC). I assume it will be streamed.
   - The U.S. Privacy and Civil Liberties Oversight Board will be issuing
   two separate reports, instead of one, as initially anticipated.
      - The first report will focus on metadata collection under Section
      215 of the PATRIOT Act and the Foreign Intelligence Surveillance Court
      (FISC). It should be officially released on 23 January and "public and
      unclassified".
      - The second report will focus on the targeting of "non-U.S.
      persons", Section 702 of the FISA Amendments Act. While this
report will be
      public, it will rely on analysis of classified material and may have a
      classified annex. Classifying critical elements of the report
could make it
      more difficult to advocate for reform of Section 702, i.e. the
targeting of
      so-called non-U.S. persons. AFAIK the release date on this report is not
      yet known.

Back in July, a number of participants in the Best Bits network endorsed a
letter  (http://bestbits.net/pclob/) submitted to PCLOB, during its public
comment period, urging the body to make recommendations to ensure that
surveillance of communications conducted under Section 702 meets
international human rights standards.

Below is a blog from Access with some more information.

Kind regards,
Deborah



https://www.accessnow.org/blog/2014/01/14/anticipated-pclob-reports-classified-toothless
Anticipated PCLOB reports: Classified? Toothless? 11:56am | 14 January 2014
| by *Drew Mitnick*<https://www.accessnow.org/blog/authors/43/Drew%20Mitnick>

*Update: We have since learned that the report on Section 702 will be
public, though it may have a classified annex. Thanks to our friends
at OpenTheGovernment.org <http://www.openthegovernment.org/> for this
information.*

Last week, the Privacy and Civil Liberties Oversight
Board<http://www.pclob.gov/> (PCLOB)
released a statement<http://www.pclob.gov/SiteAssets/newsroom/PCLOB%20Press%20Statement_1.8.14.pdf>
detailing
plans to release not just one, but two reports on NSA surveillance
programs. The Board will release one report on metadata collection under
PATRIOT Act Section 215 and the Foreign Intelligence Surveillance Court
(FISC), expected in late January or early February, and a second report on
the targeting of non-US persons under FISA Section 702, with an
indeterminate release date. These reports come on the heels of a parallel
report<https://www.accessnow.org/blog/2014/01/09/review-groups-privacy-recommendations-for-non-u.s.-persons-lack-teeth>
 by the President’s Review Group on Intelligence and Communications
Technologies, released in December 2013.

PCLOB’s release last week raised a number of questions for our team. First
and foremost, will the PCLOB reports have the bite of specific
recommendations that were
lacking<https://www.accessnow.org/blog/2014/01/09/review-groups-privacy-recommendations-for-non-u.s.-persons-lack-teeth>
 in the Review Group’s report? Critically, will the report on FISA 702 be
public or classified? If the PCLOB does release strong reports, will the
Obama administration listen? There’s plenty of evidence that none of these
answers are yes.

*Will the PCLOB recommendations have teeth?*

Unlike the President’s Review Group, which was convened under the Office of
the Director of National Intelligence, the PCLOB is an independent agency.
It was created in 2004 to advise the President on civil liberties in light
of efforts to combat terrorism, but has so far been
underutilized<https://www.accessnow.org/blog/cautious-optimism-as-us-privacy-oversight-board-finally-confirms-chair>
 and hamstrung<https://www.accessnow.org/blog/privacy-board-awakens-after-nsa-spying-is-revealed>.
The Senate failed to even approve a chairman, the Board’s only full-time
position, until May of last
year<http://www.leahy.senate.gov/press/sjc-chairman-leahy-hails-confirmation-of-privacy-board-chairman>.
PCLOB’s work marginally increased after the Snowden revelations, but have
been hampered by a lack of budget, staff, subpoena power, and requisite
security clearances<https://www.accessnow.org/blog/privacy-board-awakens-after-nsa-spying-is-revealed>.
And even if these structural deficits were resolved, a fundamental fact
remains: despite its oversight mandate, the PCLOB has zero enforcement
power<https://www.aclu.org/blog/national-security-technology-and-liberty/what-powers-does-civil-liberties-oversight-board-have>
.

The PCLOB’s disadvantaged position was only underscored by its treatment by
the recent report by the Review Group, which tacitly acknowledged the PCLOB
was not up for the task of effective oversight as currently structured. The
Review Group’s Recommendation 27 included a call to increase PCLOB’s power
by recrafting it into an oversight body with the name of the Civil
Liberties and Privacy Protection Board (CLPP -- or perhaps, “clipboard”).
The changes would expand the PCLOB’s narrow authority from
terrorism-related policy issues to encompass foreign intelligence, in order
to better align with the mandate of FISA programs.

*Will we see a public report on Section 702?*

The decision by the PCLOB to release two reports segmenting the reviews of
Section 215 and 702 programs was quietly
announced<http://www.pclob.gov/SiteAssets/newsroom/PCLOB%20Press%20Statement_12.18.13.pdf>
 in December. Why two? The language of the most recent statement may
provide a hint: It indicates the report on Section 215 and the FISC will be
“public and unclassified,” but its report on Section 702 makes no mention
of a public release, while stating that the report will address “classified
materials.” The programs conducted under Section 702 are the ones with the
greatest impact on non-U.S. persons, and are the ones we still know the
least about. Some of the weakest
parts<https://www.accessnow.org/blog/2014/01/09/review-groups-privacy-recommendations-for-non-u.s.-persons-lack-teeth>
of
the President’s Review Group’s recommendations were the sections on
treatment of non-US persons under Section 702. If the PCLOB report remains
classified, efforts to reform these programs will be severely hindered. We
urge PCLOB to release an unclassified version of its report on Section 702
programs.

*Will Obama even listen?*

Unfortunately, regardless of the classification levels of the reports,
there’s little to indicate the Obama administration will give weight to
their recommendations. President Obama has announced he will make a speech
on his proposed surveillance reforms on January 17th, just days before the
first PCLOB report
drops<http://www.bloomberg.com/news/2014-01-08/obama-to-preempt-privacy-board-on-altering-nsa-spying.html>
. This timing will allow the administration to get out ahead of any
criticisms the PCLOB report may make on the Section 215 programs, while
simultaneously allowing the White House to appear to be leading on reform
efforts. And as for the PCLOB’s recommended reforms on the Section 702
programs? Without a public report, and with a release date of weeks after
the President’s speech, these may be long lost to the newscycle -- a grim
scenario for the rights of non-US persons.

*What does this mean?*

In preparing its report, the PCLOB held an open notice and
comment<http://www.noticeandcomment.com/PCLOB-2013-0005-0048-fcod-338145.aspx>
period
this past autumn. We submitted a comment containing a number of
recommendations, including some recommending greater rights protections for
non-US persons, specifically pertaining to the Section 702 programs. At the
time, we expected that our inputs -- and those of dozens of others -- would
be the basis for a transparent public review and recommendations. A secret
review of a secret program is unacceptable: a classified report reinforces
the cloak of secrecy around the global scope of the NSA's mass surveillance
programs under Section 702, is entirely at odds with the public debate that
precipitated the review, and will almost certainly fail to effect any
meaningful or accountable change.

-- 
Deborah Brown
Senior Policy Analyst
Access | accessnow.org
rightscon.org

@deblebrown
PGP 0x5EB4727D
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