Anticipated PCLOB reports: Classified? Toothless?

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 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.