PCLOB Reaches Midway Point on Surveillance Recommendations for Congress
The Privacy and Civil Liberties Oversight Board is about “midway” through developing recommendations for Congress on U.S. surveillance programs, Chairman Adam Klein told us Friday. NSA is reportedly considering letting the controversial Section 215 phone surveillance program expire (see 1905060048) in December when the USA Freedom Act sunsets.
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“Realistically, we expect that after [Congress’] August recess, attention and interest will really start to” ramp up for reauthorization, Klein said after PCLOB's second hearing of 2019 (see 1902080058). “So we’re conscious of that [December] timeline and are going to try to accommodate that timeline in our work.” It would be “grossly premature” for members to offer any current judgment on whether the program should continue, Klein said. The goal is to inform the debate, creating a factual and analytical record so Congress can decide, board member Ed Felten told us.
National security experts cited media reports and the national intelligence director’s annual transparency reports showing declining Section 215 activity. In 2016, NSA recorded 42 targets through the program, compared with 11 targets in 2018. Copper Hill Strategies' founder Caroline Lynch and Tufts University cybersecurity professor Susan Landau told the PCLOB the decline could be the result of a shift in terrorist communication from cellphones to encrypted online tools and applications. That dozens of targets can produce hundreds of millions of records is indicative of how people use technology today, Lynch said.
Lynch outlined three options for Congress in December: expiration; altering and removing authorities from the statute; or “straight” reauthorization. Lynch, former House Judiciary Committee national security counsel, recommended the third option, saying that trying to alter the statute weeks before an election year could be politically divisive.
“If it is true that this authority is not going to be taken advantage of, it’s not the first time that Congress would have left something on the books that’s no longer in use or has outlived its usefulness for any reason,” Lynch said. That’s likely the “most politically expedient option” for Congress to resolve the matter.
Landau disagreed on reauthorization. “I don’t see the point,” she said. “We don’t want as a nation to put in a collection of authorities that are not useful because that’s giving [unnecessary] power.”
Eversheds Sutherland cybersecurity and privacy lawyer Michael Bahar asked if certain authorities would revert to the president if the program were eliminated. “That’s the direction we absolutely don’t want, so this has to be handled quite carefully,” Landau said.
The shift to encrypted, peer-to-peer communication among terrorists is reason to expand surveillance authorities, George Mason University National Security Institute Executive Director Jamil Jaffer said. Despite collecting hundreds of millions of records a year, no instance of intelligence community abuse has been reported. Hypothetical societal risks are associated with allowing the government to retain data, but threats of terrorism are “real,” he said. It’s not surprising there have been no reports of abuse, but the program is relatively young, Bahar said.
The classified nature of these programs makes oversight inherently difficult, said Cato Institute Senior Fellow Julian Sanchez. The scale and complexity of Section 215 makes it less likely to notice when data is accessed in ways not compliant with court direction, he continued. It blurs the line between accidental and deliberate abuse, he said.
The key is to determine if the program is effective in countering terrorism, Landau said. If it’s ineffective, it should be eliminated, and there’s no reason to debate the potential civil liberty trade-offs, she added.