Executive Oversight Board Defends Government Spy Program

The 'incidental' collection of a U.S. citizen's information without a warrant violates the Fourth Amendment say civil libertarians
By Gary Feuerberg
Gary Feuerberg
Gary Feuerberg
July 6, 2014 Updated: July 6, 2014

WASHINGTON—Ever since Edward Snowden’s revelations concerning the bulk collection of phone records of Americans just over a year ago, the Congress and the Executive Branch have sought to clarify and justify the programs. Due to public pressure, the government has had to make its secret programs more transparent, and address concerns that they violate privacy rights as guaranteed by the Fourth Amendment. 

The Privacy and Civil Liberties Oversight Board, an independent, bipartisan agency within the executive branch, released a 191-page report on July 2 on one of the most controversial surveillance programs the Snowden disclosures revealed, the Section 702 program of the Foreign Intelligence Surveillance Act (FISA).

The Washington Post and The Guardian reported in June 2013 that, under Section 702, the National Security Agency (NSA) and the FBI have been tapping into the central servers of nine leading U.S. Internet companies: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple, with their knowledge. 

Section 702 allows the attorney general and the director of national intelligence to collect the content of communications of non-U.S. persons “reasonably believed” to be outside the U.S. borders. The government can compel electronic communication providers, such as Google and Facebook, to assist in this endeavor for the purpose of acquiring foreign intelligence information.

In the course of gathering foreign intelligence, some U.S. citizens’ communications may be collected unintentionally. And therein lies the controversy and the potential for the violation of U.S. citizens’ privacy rights. No warrant is required here for information inadvertently collected about U.S. citizens. But government officials and corporate executives say that at least the NSA only obtains data with a court order.

The Board was established in 2007 and consists of four part-time members and a full-time chairman, David Medine. It held a public meeting at the JW Marriot Hotel in Washington D.C. on July 2. The Board’s mission is to review the government’s actions to protect the nation from terrorism while at the same time ensuring “that the need for such actions is balanced with the need to protect privacy and civil liberties.”

After taking a vote to approve the report and after brief comments made by the members, the news conference ended without an opportunity for the press to ask questions. The members made themselves available, however, following the meeting.

The Board’s findings were generally positive toward this program. Their report said that it “strikes the right balance between national security and privacy and civil liberties.” It noted that “operation of the Section 702 program has been subject to judicial oversight and extensive internal supervision, and the Board has found no evidence of intentional abuse.”

However, the Board found the program’s implementation has raised some privacy concerns regarding U.S. persons’ communications and the program’s capability to search specific U.S. persons. 

“Certain aspects of the Section 702 program push the program close to the line of constitutional reasonableness,” says the report, referring to the Fourth Amendment that protects privacy. The Board was concerned about the incidental collection of U.S. persons’ communications, and the use made of information found in the contents that refer to a U.S. citizen.

The Board claimed that the program has proven valuable in the government’s efforts to combat terrorism. “Presently, over a quarter of the NSA’s reports concerning international terrorism include information based in whole or in part on Section 702 collection, and this percentage has increased every year since the statute was enacted.” 

Also, “The program has led the government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots aimed at the United States and other countries,” states the report.

Section 702
Two major programs involved in the secret surveillance of U.S. citizens were revealed by the unauthorized disclosures of Edward Snowden in June 2013. We learned that since 2006, the NSA has been secretly collecting the records of phone communications of millions of Americans under Section 215. The Board addressed this bulk data collection in a January report.

The second secret program that Snowden brought to public attention through classified documents provided to The Guardian and the Washington Post, is the PRISM data collection as well as another lesser known program called Upstream. As its justification, Section 702 of the FISA Amendments Act of 2008 and a 2012 amendment permit the government to collect the contents of electronic communications, including telephone calls and emails, where the target is a non-U.S. person “reasonably believed” to be located outside the country. 

Although U.S. persons may not be targeted under Section 702, communications of or about U.S. persons may be acquired, as “incidental” collection. A U.S. person may communicate with a non-U.S. person who has been targeted. When two non-U.S. persons discuss a U.S. person, this is another way in which data can be collected on a U.S. citizen without consent.

“Communications of or concerning U.S. persons that are acquired in these ways may be retained and used by the government, subject to applicable rules and requirements,” states the report. 

Absence of ‘Probable Cause’
There is no requirement that the government demonstrate probable cause to believe that an individual targeted is an agent of a foreign power, as is generally required with FISA. “Instead, Section 702 certifications identify categories of information to be collected, which must meet the statutory definition of foreign intelligence information,” states the report. 

The absence of the requirement of probable cause in section 215 and 702 programs is what bothers the American Civil Liberties Union and others who see the programs as Orwellian and likely unconstitutional. “We really need to think about whether we want to live in a country where every time we pick up the phone, every time we write an email and every time we make a purchase, it’s recorded,” Snowden said in January to Anthony Romero, ACLU executive director.

The indiscriminate monitoring and collection of records of people who are not suspected of any crime or any sort of wrong doing, says Snowden, violates the traditional way we have conducted investigation and data collection.

“Where the government focuses on individuals who have committed a crime or are planning to commit a crime,” its authority would lie on a solid basis of court issued warrants and “reasonable individualized suspicion,” Snowden said in the interview, which appears in this summer’s magazine for ACLU members.


‘Minimization’ Procedures

However, the government does not work without rules. The Board discussed “minimization” and targeting procedures, which help ensure the protection of privacy and civil liberties. 

“Section 702 requires the government to develop targeting and ‘minimization’ procedures that must satisfy certain criteria. As part of the FISA court’s review and approval of the government’s annual certifications, the court must approve these procedures and determine that they meet the necessary standards.”

There must be a procedure followed to target someone “reasonably believed” to be a non-U.S. person located outside the United States likely to lead to the acquisition of foreign intelligence information. These procedures are to the “greatest extent reasonably feasible” conducted to minimize the information “not relevant to the authorized foreign intelligence purpose,” according to a NSA Fact Sheet.

NSA, CIA, and FBI have their “own minimization procedures, approved by the FISA court, that govern the agency’s use, retention, and dissemination of Section 702 data,” states the report.

The Board admitted, however, that “the applicable rules potentially allow a great deal of private information about U.S. persons to be acquired by the government.”

The Board’s third recommendation said that the NSA and CIA minimization procedures should be allowed to use U.S. person identifiers in its queries only if it is in possession of facts showing that the query is reasonably likely to return foreign intelligence information. “The NSA and CIA should develop written guidance for agents and analysts as to what information and documentation is needed to meet this standard, including specific examples,” states the recommendation.

The Board called for greater transparency in how the intelligence agencies apply minimization procedures. Recommendation 8 says, “To the maximum extent consistent with national security, the government should create and release, with minimal redactions, declassified versions of the FBI’s and CIA’s Section 702 minimization procedures, as well as the NSA’s current minimization procedure.”