[bestbits] Update on NSA reform/PCLOB reports

[Marilia Maciel]

Thank you all very much for the references. The fact that important
networks and organizations are taking a clear stance and calling for reform
is of ultimate importance. I particularly liked GNI's global approach
emphasizing the rights of people of all nations. However, when I read news
such as this one in the nyt (
http://www.nytimes.com/2014/01/15/us/nsa-effort-pries-open-computers-not-connected-to-internet.html?src=me&ref=general&_r=0),
I wonder if it is feasible to make a U turn. The investment the US
government has made on surveillance technologies must have been huge and
needs to be "payed back", like any other investment. That could happen in
several forms, like gathering intelligence, accessing industrial secrets,
collecting personal data and would give them an edge... The political and
economic incentives to continue on this path are huge. And there is an
emerging rhetoric of cold war with China that is scary... Security
companies and the defense industry must be excited with this mood, in
anticipation of profits...

And even if the government publicly committs to reform appeasing advocates,
how do we ensure that reform is being indeed carried out, when so much
information is labled under national security, and therefore is kept
secret? How to place security policies under public scrutiny and make
policy makers accountable in this field?

Am I being too pessimistic? I would like to hear from others, specially
from US, and maybe "calibrate" my views. I would love to be wrong :)

Marília





On Thu, Jan 16, 2014 at 10:47 AM, David Sullivan <
dsullivan at globalnetworkinitiative.org> wrote:

> 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<http://www.internetsociety.org/news/internet-society-urges-president-obama-effect-%E2%80%98immediate-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<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>
> Office: +1 202 741 5048
> Mobile: +1 646 595 5373
> PGP: 0x60D244AA
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>
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-- 
*Marília Maciel*
Pesquisadora Gestora
Centro de Tecnologia e Sociedade - FGV Direito Rio

Researcher and Coordinator
Center for Technology & Society - FGV Law School
http://direitorio.fgv.br/cts

DiploFoundation associate
www.diplomacy.edu
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