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Privacy and Civil Liberties Oversight Board Releases Report

The Privacy and Civil Liberties Oversight Board has released a 191 page report on the electronic surveillance program operated under FISA's Section 702. (Foreign Intelligence Surveillance Act Amendments Act of 2008.) The full report is here.

In response to the requests from Congress and the President, the Board began a comprehensive study of the two NSA programs. The Board held public hearings and met with the Intelligence Community and the Department of Justice, White House, and congressional committee staff, privacy and civil liberties advocates, academics, trade associations, and technology and communications companies.

The report "examines the collection of electronic communications under Section 702, and provides analysis and recommendations regarding the program’s implementation." It finds two areas of concern: [More....]

The Board has found that certain aspects of the program’s implementation raise privacy concerns. These include the scope of the incidental collection of U.S. persons’ communications and the use of queries to search the information collected under the program for the communications of specific U.S. persons.

The report is critical of requests by law enforcement for information obtained by FISA that it can then use in criminal investigations.

The recommendations begin on page 134. As to the FBI (and other agencies conducting domestic criminal investigations):

The Board’s unanimous Recommendation 2 states that additional limits should be placed on the FBI’s use and dissemination of Section 702 data in connection with non–foreign intelligence criminal matters. In our view, these limits should include the requirement that the FBI obtain prior FISA court approval before using identifiers to query Section 702 data to ensure that the identifier is reasonably likely to return information relevant to a criminal assessment or investigation of a crime.

...[T]he FBI has not only the capability to conduct such queries but has authorized them, and, in fact, criminal agents do conduct such queries routinely; the fact is that we do not know the precise number of times there is a subsequent use of any results from those queries.

Privacy and civil liberties concerns regarding “incidentally” collected Section 702 information do not just arise when that information is used outside the FBI, such as to obtain a search warrant. The information can also be used inside the FBI to make determinations about Americans that adversely affect them, such as deciding to move from an assessment to a formal criminal investigation. A troubling precedent could be created by permitting a general search of Section 702 material, including incidental collections of innocent Americans’ private information, which was collected with no articulable suspicion and particularized judicial approval and target-specific oversight. It could have implications when it comes to general access throughout the government to big data repositories collected for a specific purpose and under specific restrictions by a particular agency.

In the case of domestic criminal law enforcement, which currently operates under a painstaking structure with deep roots in the Fourth Amendment and a myriad of particularized statutes and case law, a general permission to search such protected data without any need to demonstrate even an articulable suspicion about the named selector is especially worrisome.....

...We do not anticipate that requiring judicial approval for queries in ordinary crime situations will erect any serious impediment to law enforcement....Our proposal will not ban any queries regarding U.S. persons or others in investigations of either foreign intelligence or domestic crimes, but rather would interpose a time honored protection of approval by a detached judicial officer of government access to Americans’ communications. This is the minimal protection that should be afforded to U.S. persons who have done nothing to merit forfeiture of all Fourth Amendment protection to their private papers.

However, the report is disappointing in that it finds NSA programs targeting foreigners are effective, legal and show “no trace” of “illegitimate activity.”

The EFF issues a scathing review of the report.

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