[bestbits] Update on NSA reform/PCLOB reports

[Deborah Brown]

Hi Joana, Yes the PCLOB reports should have recommendations, which
potentially Congress or the White House would take up. PCLOB was created to
advise the President, but there should be proposals that would require
Congressional action. But considering Obama is making a major speech before
PCLOB releases its findings and recommendations, their significance may be
diminished.

Here's some additional info on the anticipated speech (section about rights
of "foreigners/non-U.S.-persons" in bold)

I hope this is helpful.

All the best,
Deborah

http://www.nytimes.com/2014/01/15/us/politics/judge-warns-proposed-safeguards-could-hamper-surveillance-court.html?hp

*Obama to Place Some Restraints on Surveillance*
By PETER BAKER and CHARLIE SAVAGEJAN. 14, 2014

President Obama spoke to reporters before a cabinet meeting at the White
House on Tuesday morning. Mr. Obama’s speech on spying guidelines is
scheduled for Friday. Stephen Crowley/The New York Times


WASHINGTON — President Obama will issue new guidelines on Friday to curtail
government surveillance, but will not embrace the most far-reaching
proposals of his own advisers and will ask Congress to help decide some of
the toughest issues, according to people briefed on his thinking.

Mr. Obama plans to increase limits on access to bulk telephone data, *call
for privacy safeguards for foreigners* and propose the creation of a public
advocate to represent privacy concerns at a secret intelligence court. But
he will not endorse leaving bulk data in the custody of telecommunications
firms, nor will he require court permission for all so-called national
security letters seeking business records.

The emerging approach, described by current and former government officials
who insisted on anonymity in advance of Mr. Obama’s widely anticipated
speech, suggested a president trying to straddle a difficult line in hopes
of placating foreign leaders and advocates of civil liberties without a
backlash from national security agencies. The result seems to be a speech
that leaves in place many current programs, but embraces the spirit of
reform and keeps the door open to changes later.

*The decision to provide additional privacy protections for non-American
citizens or residents, for instance, largely codifies existing practices
but will be followed by a 180-day study by the director of national
intelligence about whether to go further. *Likewise, instead of taking the
storage of bulk data out of government hands, as recommended by a review
panel he appointed, Mr. Obama will leave it in place for now and ask
lawmakers to weigh in.

The blend of decisions, to be outlined in a speech at the Justice
Department and in a presidential guidelines memorandum, will be Mr. Obama’s
highest-profile response to the disclosures about the National Security
Agency made in recent months by Edward J. Snowden, a former N.S.A.
contractor who has fled to Russia.

But as intelligence officials have sorted through Mr. Obama’s evolving
position, they have been divided about how significant his adjustments will
be.

Some officials complained that the changes will add layers of cumbersome
procedure that will hinder the hunt for potential terrorists, while others
expressed relief that Mr. Obama is not going further and confidence that
they could still work within the new guidelines without sacrificing much.

“Is it cosmetic or is there a real thumb on the scale in a different
direction?” asked one former government official who worked on intelligence
issues. “That’s the question.”

The White House said the president’s review is incomplete and would not
comment further Tuesday.

The developments came as the nation’s judiciary waded into the highly
charged debate. In a letter made public on Tuesday, a judge designated by
Chief Justice John G. Roberts Jr. to express the views of the judicial
branch warned that some changes under consideration would have a negative
“operational impact” on a secret foreign intelligence court.

Judge John D. Bates, a former chief judge of the Foreign Intelligence
Surveillance Court, urged Mr. Obama and Congress not to alter the way the
court is appointed or to create an independent public advocate to argue
against the Justice Department in secret proceedings. Any such advocate, he
wrote, should instead be appointed only when the court decided one was
needed.

Judge Bates objected to the workload of requiring that courts approve all
national security letters, which are administrative subpoenas allowing the
F.B.I. to obtain records about communications and financial transactions
without court approval.

And he raised concerns about greater public disclosure of court rulings,
arguing that unclassified summaries would be “likely to promote confusion
and misunderstanding.”

The judge’s letter, versions of which he sent to the leaders of several
congressional committees, was released as all five members of Mr. Obama’s
surveillance review group testified Tuesday before the Senate Judiciary
Committee, seeking support for their recommendations.

Illustrating the cross-pressures on the president, the advisers argued for
the appointment of the independent version of a public advocate, a
recommendation the president is expected to follow, though it is not clear
how he will structure the position.

“We admire Judge Bates and respect his views,” said Cass R. Sunstein, of
Harvard Law School and a former Obama White House official who served on
the review panel. “We respectfully disagree with that one, on the ground
that the judge sometimes is not in the ideal position to know whether a
particular view needs representation and that in our tradition, standardly,
the judge doesn’t decide whether one or another view gets a lawyer.”

The judge’s objection to the proposal on national security letters
dovetailed with that of the F.B.I. director, James B. Comey, who argued it
would be inefficient to have to go to a judge each time records were
sought. Mr. Obama has decided not to require court approval in every case,
but might still require it in some circumstances, according to one
administration official.

Mr. Obama will cut back on the number of people whose phone records can be
examined by the N.S.A. through its bulk data program. Currently the agency
can scrutinize call records of people as far as three steps, or “hops,”
removed from a suspect. Mr. Obama’s review panel proposed limiting searches
to people just two steps removed. He is also likely to cut down the number
of years such data can be retained; currently it is deleted after five
years.

But the president will not, at least for now, back the panel’s suggestion
that telecommunications firms keep such data and that the government be
allowed to tap into those databases only when necessary.

Intelligence officials complained it would be inefficient to have to go to
multiple companies, so some officials proposed creating an independent
consortium to store the data instead.

Mr. Obama has decided against keeping the data at the private providers
because they do not want that responsibility, officials said, and no
independent consortium currently exists. As a result, he will ask Congress
to work with him to determine the best way to store the data.

He also appears likely to reject the idea of separating code breakers and
code makers. Some critics of the N.S.A. were disturbed that the agency’s
encryption team charged with bolstering online security systems against
hackers was working with the team that tries to penetrate computer systems
used by terrorists.

The letter by Judge Bates was accompanied by 15 pages of often specific
comments about possible surveillance reforms.

It is highly unusual for judges to weigh in on public policy debates
involving the other two branches of government, but Judge Bates, the
director of the Administrative Office of the United States Court, said that
Chief Justice Roberts had designated him to “act as a liaison” and that he
had consulted other judges.

The judge emphasized that his comments were meant to address smooth
operation of the court and were “not intended as expressions of support or
opposition to particular introduced bills.”

Still, his comments went beyond workload issues. He objected to a proposal
by Mr. Obama’s review group to take away Chief Justice Roberts’s sole power
to appoint the 11 judges of the surveillance court and have them picked
instead by the chief judges of the appeals courts.

Ten of the 11 current judges were appointed by Republican presidents, and
critics have called for more diversity. “The chief justice is uniquely
positioned to select qualified judges,” Judge Bates argued.


On Wed, Jan 15, 2014 at 3:39 AM, Joana Varon <joana at varonferraz.com> wrote:

> Thanks, Deborah. Very useful info.
> Will keep a look for the streaming and release of the first report. I
> suppose it will bring recomendations, right? Sorry if this question is too
> basic, but what can be the height for a report such as this? Is there any
> process within the US gov in face of it?
> Best
> Joana
> On 15 Jan 2014 02:32, "Deborah Brown" <deborah at accessnow.org> wrote:
>
>> 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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>


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

@deblebrown
PGP 0x5EB4727D
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