A government panel tasked to examine how a controversial program of the National Security Agency is executed has determined the Section 702 program has been “effective” in improving aspects of “national security,” but that the manner in which it performs its unwarranted and bulk collection of telephone and digital communications place it on the very edge of “constitutional unreasonableness.”
The draft report is informative but flawed, say critics of its methods and finding, in that it takes too many of the government’s own questionable claims and legal assumptions as it starting point, without a deeper and more adversarial examination of how the bulk data being collected by the agency is being gathered in the first place.
The draft report (pdf) from the Privacy and Civil Liberties Oversight Board (PCLOB) was released to journalists and the public late on Tuesday with a meeting of the board and approval of the final draft scheduled for Wednesday. The PCLOB is an independent oversight agency of the government which has reviewed previous surveillance programs of the NSA following revelations made possible by the leaks by whistleblower Edward Snowden last year.
In its review, the panel looked at the NSA’s PRISM program, which operates under the authority of Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) (pdf), by which the government collects the contents of electronic communications, including telephone calls and emails. Targets under the program are restricted by law to targets that are “reasonably believed to be non-U.S. persons located outside the United States,” but privacy advocates and civil liberties groups have argued that government agencies, including the FBI and CIA, have stretched that interpretation well beyond what the law intended.
According to Cindy Cohn, legal director at the Electronic Frontier Foundation, the PCLOB falls well short of what is required in terms of oversight and holding the NSA and other government agencies accountable. “The board focuses only on the government’s methods for searching and filtering out unwanted information,” she notes in a blog post on the group’s website. “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.
Other initial reviews of the report called its findings a vindication of the NSA’s claims that the PRISM program and use of Section 702 have been useful and “legal” tools in the effort to distrupt terrorist networks or national security threats around the globe.
As the Guardian‘s Spencer Ackerman reports, the PCLOB assessment “dealt the NSA a victory on Tuesday night by calling the information reaped ‘valuable’. It pointedly rejected similar claims for the bulk collection of US call data in a January report.”
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