[bestbits] Update on NSA reform/PCLOB reports

[Deborah Brown]

Hi Ian,

I find the headline "US judiciary rejects NSA reform proposals from Obama’s
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 <deborah at accessnow.org>
> *Sent:* Thursday, January 16, 2014 7:36 AM
> *To:* Joana Varon <joana at varonferraz.com>
> *Cc:* mailto:bestbits at lists.bestbits.net <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. 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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-- 
Deborah Brown
Senior Policy Analyst
Access | accessnow.org
rightscon.org

@deblebrown
PGP 0x5EB4727D
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