PCLOB to Examine 12333, Granting Privacy Advocates’ Call
The Privacy and Civil Liberties Oversight Board (PCLOB) will turn its attention to Executive Order 12333, which authorizes much of the U.S. intelligence agencies’ surveillance activities, the board said at a Wednesday meeting. Privacy and civil liberties advocates have been asking PCLOB to review the order, arguing it has less oversight and grants broader surveillance authorities than Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act (FISA) -- the subjects of PCLOB’s first two reports.
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The only check on 12333 surveillance “comes from executive oversight,” Jeramie Scott, national security counsel at the Electronic Privacy Information Center, told the board Wednesday. “This minimal oversight does not even give the appearance of checks and balances.” The order doesn’t even fall under the purview of the Foreign Intelligence Surveillance Court, which has measures of control over 215 and 702 surveillance programs, Scott said. The order, said Greg Nojeim, director for the Project on Freedom, Security & Technology at the Center for Democracy & Technology, “is the basis for bulk collection."
Former President Ronald Reagan issued Executive Order 12333 in 1981 (http://1.usa.gov/1kGYFLm). It was amended a few times to account for the creation and growth of the Office of the Director of National Intelligence, Nojeim told the board. But it “hasn’t been modified to account for technology,” he said.
In its two reports this year, PCLOB questioned the legality of 215’s bulk telephone records collection program (CD Jan 24 p5), but concluded 702’s foreign Internet surveillance programs were both legal and valuable (CD July 3 p5). The majority of the five-member board suggested an end to the bulk telephone metadata program altogether, while the 702 report suggested increased transparency and oversight mechanisms to ward off potential encroachments on Americans’ civil liberties.
Until 12333 is addressed, PCLOB will not have done a comprehensive review of surveillance programs, several presenters argued Wednesday. “Americans should be more concerned” with 12333 than with the Patriot Act or FISA, said John Tye, a former State Department section chief for Internet freedom in the Bureau of Democracy, Human Rights and Labor. There’s “nothing” in 12333 that would prevent the National Security Agency from collecting almost all types of communications that Americans use, he said. It doesn’t limit the volume of collection and allows for retention up to five years, Tye said. The House-passed USA Freedom Act, intended to implement more surveillance oversight, “would actually do nothing to address this very large legal loophole,” he said. Tye left the State Department earlier this year and is now a legal director at civic organization Avaaz.
To limit collection and retention, Nojeim and Tye recommended PCLOB suggest altering definitions and practices, as delineated within 12333. Nojeim took issue with the “relating to” portion of the order’s definition of foreign intelligence: “Foreign intelligence means information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.” As written, “that is not a meaningful limitation,” he said, calling it “broad” and “permissive.” He pointed to FISA’s definition, which clarifies that for U.S. persons the information must be “necessary” for the U.S. to protect against such foreign threats. “Would that two-tiered approach be workable?” asked board member Patricia Wald, a former judge for U.S. Court of Appeals for the D.C. Circuit. Nojeim said he wasn’t sure, but wanted PCLOB to investigate.
"It’s an interesting idea,” said PCLOB member Rachel Brand, chief counsel-regulatory litigation for the U.S. Chamber of Commerce’s litigation arm. But she wasn’t sure if changing a definition would accomplish Nojeim’s goal of limiting collection. “The definition of foreign intelligence relates to what type of information you're trying to get, not so much how you get it,” she said, suggesting she and Nojeim discuss the subject more.
Tye recommended the board suggest all communications of U.S. persons incidentally collected be immediately purged. “How would that work?” asked PCLOB member Elisebeth Collins Cook, a counsel for WilmerHale, saying she wanted to learn more about the possibility. In PCLOB’s 702 report, Wald and PCLOB Chairman David Medine examined the possibility of purging communications if no evidence of a crime is found. Tye said the communications should be dismissed without any review, “so it can’t be stored, it can’t be queried.”