[bestbits] Update on NSA reform/PCLOB reports

Thu Jan 16 00:51:05 EST 2014

Folks may be interested in EFF's scorecard.  We'll be grading Obama after his Friday
speech.

https://www.eff.org/deeplinks/2014/01/scorecard-will-obama-hit-mark-real-nsa-reform

--
James S. Tyre
Law Offices of James S. Tyre
10736 Jefferson Blvd., #512
Culver City, CA 90230-4969
310-839-4114/310-839-4602(fax)
jstyre at jstyre.com
Special Counsel, Electronic Frontier Foundation
https://www.eff.org

From: bestbits-request at lists.bestbits.net [mailto:bestbits-request at lists.bestbits.net] On
Behalf Of Ian Peter
Sent: Wednesday, January 15, 2014 9:34 PM
To: Deborah Brown
Cc: bestbits at lists.bestbits.net
Subject: Re: [bestbits] Update on NSA reform/PCLOB reports

nice to see ISOC getting in on the act too..

http://www.internetsociety.org/news/internet-society-urges-president-obama-effect-%E2%80%9
8immediate-and-meaningful%E2%80%99-changes-us-government

From: Deborah Brown 
Sent: Thursday, January 16, 2014 3:30 PM
To: Ian Peter 
Cc: mailto:bestbits at lists.bestbits.net 
Subject: Re: [bestbits] Update on NSA reform/PCLOB reports

Hi Ian,  

I find the headline "US judiciary rejects NSA reform proposals from Obamas review group"
of the article a bit misleading.  I don't think the letter from Judge Bates constitutes a
rejection on behalf of the U.S. Judiciary, as influential or respected he might be. The
NYT article I sent did take into account Bates' letter and offered a dissenting view (by
Cass R. Sunstein). Others here may have more insight into the importance of Bates' letter.

I agree with you that now may be the time for last minute pressure, and I would add for
the sake of international human rights to your list :)
All the best, 
Deborah 

On Wed, Jan 15, 2014 at 6:25 PM, Ian Peter <ian.peter at ianpeter.com> wrote:
Hi Deborah, is this summation before or after

http://rt.com/usa/us-judges-nsa-reform-649/

It seems that Obama is being pressured by various lobby groups and powerful forces and I
wonder how predictable any outcome is at this stage.

I just went to www.whitehouse.gov and submitted a few comments urging the President to be
strong  for the sake of US standing in the world, the economic performance of US tech
companies, and the citizens of the world. Might be time to lobby as much last minute
persuasion as we can muster...

Ian Peter  

From: Deborah Brown 
Sent: Thursday, January 16, 2014 7:36 AM
To: Joana Varon 
Cc: mailto:bestbits at lists.bestbits.net 
Subject: Re: [bestbits] Update on NSA reform/PCLOB reports

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. Obamas 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. Obamas 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. Obamas 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. Obamas 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. Thats the question.

The White House said the presidents review is incomplete and would not comment further
Tuesday.

The developments came as the nations 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 judges letter, versions of which he sent to the leaders of several congressional
committees, was released as all five members of Mr. Obamas 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 doesnt decide whether one or another view gets a
lawyer.

The judges 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. Obamas 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 panels 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 agencys 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. Obamas
review group to take away Chief Justice Robertss 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.  
o 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". 
o 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
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 for this
information.
Last week, the Privacy and Civil Liberties Oversight Board (PCLOB) released a statement
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 by the Presidents Review Group on Intelligence and Communications Technologies,
released in December 2013.
PCLOBs 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 in the
Review Groups report? Critically, will the report on FISA 702 be public or classified? If
the PCLOB does release strong reports, will the Obama administration listen? Theres
plenty of evidence that none of these answers are yes.
Will the PCLOB recommendations have teeth?
Unlike the Presidents 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 and hamstrung. The Senate failed to even approve a chairman, the
Boards only full-time position, until May of last year. PCLOBs work marginally increased
after the Snowden revelations, but have been hampered by a lack of budget, staff, subpoena
power, and requisite security clearances. And even if these structural deficits were
resolved, a fundamental fact remains: despite its oversight mandate, the PCLOB has zero
enforcement power.
The PCLOBs 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 Groups Recommendation 27
included a call to increase PCLOBs 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 PCLOBs 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 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 of the Presidents
Review Groups 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, theres 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. 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 PCLOBs recommended reforms on the Section 702 programs?
Without a public report, and with a release date of weeks after the Presidents 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 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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Access | accessnow.org
rightscon.org

@deblebrown
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Deborah Brown
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Access | accessnow.org
rightscon.org

@deblebrown
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