When the watchdog whimpers: new report proposes no legal fixes for NSA’s warrantless “702” surveillance program

Created as an independent federal agency by Congress in 2007 to safeguard the public’s privacy and civil liberties in the wake of 9/11, the Privacy and Civil Liberties Oversight Board (PCLOB) has just adopted and published its second major report on the most invasive government surveillance programs.

The first, released in January of 2014, virtually growled its disapproval of the “bulk collection” of telephone metadata of millions of Americans under Section 215 of the USA Patriot Act, which it criticized as highly intrusive and largely ineffective in promoting national security.  The Board’s second report was approved and released today. According to ALA coalition partner experts at the Electronic Frontier Foundation, however, this second effort is as “anemic” when it comes to protecting personal privacy as the first was robust. In “Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act,” for example:

The board skips over the essential privacy problem with the . . . program: that the government has access to or is acquiring nearly all communications that travel over the Internet. The board focuses only on the government’s methods for searching and filtering out unwanted information. This ignores the fact that the government is collecting and searching through the content of millions of emails, social networking posts, and other Internet communications, steps that occur before the PCLOB analysis starts.

Further, despite the dictates of the Fourth Amendment, the Board essentially endorses the use of general warrants to search through the content of unimaginable numbers of communications of millions of Americans in broad pursuit of “foreign intelligence” here and abroad.  The report “takes no position” on the NSA’s claimed exception to the warrant requirement when the government seeks foreign intelligence.  As EFF notes, “The Supreme Court has never found this exception.”

Concluding that the sweeping Section 702 program is “clearly authorized by Congress, reasonable under the Fourth Amendment, and an extremely valuable and effective intelligence tool,” PCLOB doesn’t propose a single legislative change to better protect Americans’ privacy in its new report.   Rather, the Board suggests that the NSA voluntarily adopt a number of “procedures” intended to increase transparency and accountability.

Not good enough.  As ALA Washington Office executive director, Emily Sheketoff, made clear in a press statement this morning:

“While we respect the Board’s efforts, its recommendations are a serious disappointment.  Weaker than many Congressional calls for action to reform Section 702 from across the political spectrum, and at odds in part with respected jurists, PCLOB’s recommendations should be considered an absolute floor for 702 reform and a spur to immediate and broad legislative expansion. ALA’s 57,000 members will continue to fight for nothing less.”

Sign up now for more information about how you can help push critical Section 702 reforms through the House and give them wings in the Senate.

Further Background

Report: Oversight Board Finds Little Wrong With NSA Surveillance Program, Wired July 2, 2014

Government Privacy Watchdog Signs Off on Much of NSA Warrantless Wiretapping Program, ACLU Blog July 2, 2014

Adam Eisgrau is a veteran intellectual property and privacy policy lobbyist. Eisgrau assists the American Library Association in implementing strategic policy initiatives that engage decision makers and establish policy priorities, such as protecting reader privacy and supporting the fair use doctrine.

Posted in Cybersecurity, Intellectual Freedom, Legislation, Library Advocacy, OGR, Privacy & Surveillance
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  1. […] American Library Association: When the watchdog whimpers: new report proposes no legal fixes for NSA’s warrantless “702” sur… […]

  2. […] expressing disappointment in the PCLOB’s findings. The American Library Association’s Adam Eisgrau noted that “despite the dictates of the Fourth Amendment, the Board essentially endorses the […]

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