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US privacy oversight board slams legality & usefulness bulk data collection

5:54pm | 23 January 2014 | by Peter Micek, Jochai Ben-Avie, Jon Fox

Access welcomes the first report from the US Privacy and Civil Liberties Oversight Board (PCLOB), recommending an end to bulk collection of phone records by the US government. We urge Congress and the Obama Administration to work swiftly to implement PCLOB’s recommendations.

Access sees today’s recommendations as a major step toward ending the practice of indiscriminate bulk collection of user data. While the report is limited in its scope, it makes bold statements casting doubt on both the legality and the utility of the NSA’s mass surveillance programs. Sadly, the PCLOB report missed a chance to cite the impact of NSA surveillance on users outside the US, something Access will look for in the Board’s forthcoming report on the programs authorized under Section 702 of the FISA Amendments Act. Nonetheless, today’s report provides a sober legal and policy analysis that establishes why bulk data collection violates user privacy in the US, why third parties should not be forced to retain data, and why the Foreign Intelligence Surveillance Court (FISC) must enact reforms ensuring adversarial representation and greater transparency.

In its report, the PCLOB called into question the legal justification of the bulk telephone record collection program, stating it “lacks a viable legal foundation under Section 215.” Just because some telephone records may contain material information, the PCLOB noted, does not prove that all such records meet the “relevancy” requirement for mass data collection under Section 215. The PCLOB warned against the slippery slope of the government’s reasoning, which could be abused to allow for the collection of other categories of metadata, even content data. In its report, the PCLOB grimly predicted, “That is the future that can be expected if the government’s interpretation of Section 215 prevails.”

Access applauds the PCLOB’s decision to directly oppose the US President’s Review Group on Intelligence and Communications Technologies recommendation that private telecoms be required to retain user data for several years. The Review Group suggested the mandatory data retention regime in an ostensibly well-intentioned, but poorly thought out effort to take the data of hundreds of millions of users out of the US government’s hands. The PCLOB rightly objected that data retention requirements for third parties like telecoms, “would pose difficult questions of liability, accountability, oversight, mission creep, and data security, among others.” PCLOB’s report adds another important voice to the growing chorus objecting to mandatory data retention, joining US telecoms and European courts amongst others.

The PCLOB’s report also looked into the operations of the Foreign Intelligence Surveillance Court (FISC). Access supports PCLOB’s call to establish a Special Advocate, a lawyer authorized to challenge the government’s positions on privacy, civil rights, and civil liberties issues. However, Access rejects the PCLOB’s suggestion that it should be up to a FISC judge’s determination “as to whether the Special Advocate would participate in any particular matter.” Access believes the Special Advocate should be authorized to intervene in any and all FISC cases, and enjoy unfettered access to all materials necessary for adequate legal representation, including legal documents, evidence, and FISC decisions. Particularly in cases where new legal theories are being decided or the scope of the government’s surveillance authority considered, it is critical that FISC judges hear from an independent voice in an adversarial hearing. Anything less would be a denial of due process and democratic accountability.

PCLOB’s recommendation on the introduction of a Special Advocate also goes further than President Obama did in a speech on NSA reform last Friday, where he called on Congress "to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court." It is not clear how many cases would be "significant," allowing the advocates to participate. Moreover, it seems the President’s proposed panel would be more a group of experts for the FISC to consult, rather than an advocate for the public interest and human rights.

Access further supports the PCLOB’s recommendation to release future and past FISC decisions “that involve novel interpretations of FISA or other significant questions of law, technology or compliance.” This is an important step towards ending secret courts and secret law in the United States, which run afoul of international norms of rule of law.

PCLOB’s report on Section 215 and the FISC adds important input into the public discourse on surveillance reform, and we welcome its recommendations. However, the report did not comment substantively on the impact of mass surveillance on international users and their human right to privacy, points Access raised in our Comment for PCLOB’s public consultations. We expect PCLOB will address these issues in its upcoming study of Section 702 of the FISA Amendments Act. Indeed, many of the programs authorized under 702 are those which most adversely impact international users’ digital rights. In the meantime, we call on Congress and the Obama Administration to enact the suggested reforms without delay.