[bestbits] Update on NSA reform/PCLOB reports

[Deborah Brown]

Here is a link for the livestreaming of Obama's speech for those interested:

*http://www.whitehouse.gov/live/president-obama-speaks-signals-intelligence-programs
<http://www.whitehouse.gov/live/president-obama-speaks-signals-intelligence-programs>*

Starting in a few minutes.

Embargoed copy attached.

Best,
Deborah


On Thu, Jan 16, 2014 at 11:44 PM, Eddan Katz <eddank at aya.yale.edu> wrote:

> And at the intersection of global and local, the Oakland Privacy Working
> Group is setting its sights on shutting down funding for the Domain
> Awareness Centers and their Fusion Centers. We're in the finally month of
> opposition and think we have a chance to severely cut this off in Oakland
> City Council in an upcoming Public Safety Committee vote.
>
> Here's our petition:
>
> https://www.change.org/petitions/the-mayor-and-city-council-of-oakland-ca-don-t-sell-out-the-people-of-oakland-to-the-department-of-homeland-security-don-t-vote-to-fund-the-domain-awareness-center
>
> We're hoping that some attention from digital rights networks will be
> decisive in swaying the key votes. We are trying to get as many signatures
> as possible in the very short term so that this story can reach its tipping
> point and ride on the heels of the announcements from the Executive Branch
> tomorrow. We are also paying close attention to the potential impact of the
> CA Senate Bill 828 4th Amendment Protection Act enabling legal cover for
> non-cooperation with the NSA (
> http://blog.tenthamendmentcenter.com/2014/01/new-california-state-legislation-seeks-to-thwart-nsa-spying/
> ).
>
>
> sent from eddan.com
>
> On Tuesday, January 14, 2014 at 8:37 PM, Eddan Katz wrote:
>
>
>
> ---------- Forwarded message ----------
> From: *Deborah Brown* <deborah at accessnow.org>
> Date: Tue, Jan 14, 2014 at 8:31 PM
> Subject: [bestbits] Update on NSA reform/PCLOB reports
> To: "<bestbits at lists.bestbits.net>" <bestbits at lists.bestbits.net>
>
>
> 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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