[bestbits] Update on NSA reform/PCLOB reports

[David Sullivan]

Hi all,

Here is GNI's statement and recommendations in advance of the speech:
http://www.globalnetworkinitiative.org/news/surveillance-reforms-protect-rights-and-restore-trust

Also of interest may be this piece by Geoff King from CPJ:
http://cpj.org/internet/2014/01/obamas-legacy-on-the-line-with-surveillance-policy.php

Best,
David


On Thu, Jan 16, 2014 at 12:51 AM, James S. Tyre <jstyre at jstyre.com> wrote:

> 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
> 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
> 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. 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.
> 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 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 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 and hamstrung. The Senate failed to even approve
> a chairman, the
> Board’s only full-time position, until May of last year. 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. And even if these structural
> deficits were
> resolved, a fundamental fact remains: despite its oversight mandate, the
> PCLOB has zero
> enforcement power.
> 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 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 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. 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 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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-- 
David Sullivan
Policy and Communications Director
Global Network Initiative <http://www.globalnetworkinitiative.org>
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