Civil Liberties Board Takes Heat for NSA Spying Report

The United States Privacy and Civil Liberties Oversight Board has come under fire for its latest report on NSA surveillance.

The report essentially says collection of information under Section 702 of the Foreign Intelligence Surveillance Act “has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence.”

However, certain aspects of its implementation pertaining to surveillance of U.S. citizens have raised privacy concerns, the report says, and the board has listed 10 policy recommendations to strengthen privacy safeguards.

Response to the report generally has been scathing.

It “is a very weak report” that “fails to fully grasp the significance of allowing the government to conduct surveillance on a massive scale, to store the communications of millions of Americans in databases, and to let the government search those databases without adequate restrictions,” Patrick Toomey, a staff attorney at the American Civil Liberties Union’s national security project, told TechNewsWorld.

Some of the Report’s Findings

The board separately evaluated the NSA’s PRISM and upstream collection surveillance programs, the latter being the interception of phone and Web traffic from the Internet’s foreign and domestic infrastructure.

On the whole, Section 702 “provides the public with transparency into the legal framework for collection, and it publicly outlines the basic structure of the program,” the board wrote.

PRISM is “clearly authorized” by Section 702, it concluded.

The section “can permissibly be interpreted as allowing” the so-called “about” communications, where a target’s email address may be mentioned in a communication without that person participating in that communication, the board said. That occurs in upstream collection.

“The report entirely skipped over the first step of the upstream process, where they examine the content of every communication to select a target,” the ACLU’s Toomey pointed out.

Watching the Watchers?

Actions taken under Section 702 come under both internal oversight at the various U.S. government agencies and oversight by the FISA Court, the board said.

However, the FISA Court chief, U.S. District Judge Reggie Walton, has said that the court “does not have the capacity to investigate issues of noncompliance” or enforce compliance with its orders, The Washington Post reported.

Further, the court secretly issued rulings that assess broad constitutional questions and establish judicial precedents without oversight.

Gather Ye Targets While Ye May

Section 702 imposes “significantly fewer” limits on the U.S. government than the process governed by the Foreign Intelligence Service Act, permitting “greater flexibility and a dramatic increase” in the number of people who can realistically be targeted, the board noted.

Nearly 90,000 people were targeted with just one order under Section 702 last year, the U.S. Director of National Intelligence has reported, although that report has been criticized for its opacity.

Saving America From Terrorists?

Section 702 “has played a key role in discovering and disrupting specific terrorist plots aimed at the U.S. and other countries,” the board said.

“I’m highly skeptical that the monitoring has truly had an impact on disrupting terrorist activity,” Yasha Heidari, managing partner of Heidari Power Law Group, told TechNewsWorld, pointing out that the Boston Marathon bombing “was a relatively amateur terrorist operation” with several red flags ignored by the authorities.

Former NSA head Keith Alexander had claimed 50 terrorist attacks were thwarted, but James Inglis, his then-deputy, later told Congress the actual figure was only one.

Deconstructing the Board’s Report

The report “focuses on the adequacy of controls over the acquisition of data and not on the effectiveness of the program,” Rob Enderle, principal analyst at the Enderle Group, told TechNewsWorld.

“Generally an audit like this won’t identify any actual wrongdoing unless the auditors are lucky or the audit far more comprehensive than this one is,” he pointed out.

The board “is doing its job,” Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation, told TechNewsWorld, “but the complexity of the programs and the technical databases is creating a complacency to ignore key aspects of the collection.”

Richard Adhikari

Richard Adhikari has written about high-tech for leading industry publications since the 1990s and wonders where it's all leading to. Will implanted RFID chips in humans be the Mark of the Beast? Will nanotech solve our coming food crisis? Does Sturgeon's Law still hold true? You can connect with Richard on Google+.

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