The Government Is About to Report on Its Own Spying. Here’s What to Watch For.

An Obama-appointed panel of privacy watchdogs may call for the end of “backdoor” spying.

National Journal
Brendan Sasso
July 1, 2014, 7:08 a.m.

Pri­vacy ad­voc­ates are hop­ing to get a boost Wed­nes­day when a gov­ern­ment pan­el is slated to re­lease a re­port on one of the most con­tro­ver­sial fed­er­al spy­ing powers.

The Pri­vacy and Civil Liber­ties Over­sight Board, an in­de­pend­ent watch­dog, is set to un­veil its long-awaited re­port on spy­ing pro­grams un­der Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act. The pro­vi­sion al­lows the Na­tion­al Se­cur­ity Agency to spy on com­mu­nic­a­tions of for­eign­ers, but the agency in some cases has also used that au­thor­ity to tar­get Amer­ic­ans.

In the wake of the leaks by Ed­ward Snowden, much of the fo­cus has been on Sec­tion 215 of the USA Pat­ri­ot Act, which the NSA has been us­ing to col­lect re­cords on mil­lions of U.S. phone calls.

Sec­tion 702 hasn’t re­ceived the same level of at­ten­tion, but the NSA has been us­ing that au­thor­ity for sev­er­al con­tro­ver­sial spy­ing pro­grams. And un­like Sec­tion 215, which only al­lows the NSA to col­lect “metadata” such as phone num­bers and call times, Sec­tion 702 al­lows spies to read the con­tents of emails and oth­er com­mu­nic­a­tions.

With the Obama ad­min­is­tra­tion and nearly all law­makers now on board with tight­en­ing Sec­tion 215 to ban bulk data col­lec­tion, Sec­tion 702 has emerged as a crit­ic­al re­main­ing battle­ground in the fight over fed­er­al spy­ing.

Wed­nes­day’s re­port could also be an im­port­ant mo­ment for the civil-liber­ties board to step in­to the spot­light. The pan­el, which was cre­ated after the Sept. 11, 2001, at­tacks to de­fend pri­vacy rights, re­leased a re­port on Sec­tion 215 earli­er this year, but it was largely over­shad­owed by a sep­ar­ate re­port from Pres­id­ent Obama’s own re­view group on sur­veil­lance is­sues.

Obama didn’t even wait for the PCLOB re­port to an­nounce how he wanted to re­form the pro­gram. Here are the ma­jor ques­tions ahead of the pan­el’s latest re­port:

1. Will the board want to end “back­door” spy­ing?

Sec­tion 702 is sup­posed to al­low spy­ing only on for­eign­ers loc­ated out­side the United States. But the gov­ern­ment has ac­know­ledged that it some­times sifts through the vast batches of for­eign data it col­lects spe­cific­ally look­ing for com­mu­nic­a­tions of Amer­ic­ans.

Pri­vacy ad­voc­ates have con­demned the prac­tice as an il­leg­al “back­door” meth­od for do­mest­ic sur­veil­lance. The House voted 293-123 re­cently in fa­vor of an amend­ment to a de­fense ap­pro­pri­ations bill that would re­quire the NSA to get a war­rant be­fore ac­cess­ing Amer­ic­ans’ com­mu­nic­a­tions.

If PCLOB also comes out against the “back­door” 702 searches, it could put fur­ther pres­sure on the Sen­ate to ban the prac­tice.

Kev­in Bank­ston, the policy dir­ect­or for the Open Tech­no­logy In­sti­tute, said he ex­pects that poli­cy­makers will be “pay­ing very close at­ten­tion” to what the re­port says on back­door searches.

“At this point, it’s clear that the U.S. gov­ern­ment is do­ing a sub­stan­tial amount of sur­veil­lance re­lated to U.S. per­sons us­ing this Sec­tion 702 au­thor­ity that’s sup­posed to be dir­ec­ted out­side of the coun­try,” he said. “And that back­door needs to be shut.”

2. Will the board push to lim­it drag­net searches?

Un­der Sec­tion 702, the NSA taps in­to the In­ter­net back­bone to gath­er in­ter­na­tion­al com­mu­nic­a­tions. Ac­cord­ing to leaks, the NSA looks not only for mes­sages “to” and “from” cer­tain tar­gets but also mes­sages “about” those tar­gets. But know­ing what com­mu­nic­a­tions are “about” a tar­get means the NSA has to scan through nearly everything.

The House’s ver­sion of the NSA re­form bill, the USA Free­dom Act, would ex­pli­citly al­low for the col­lec­tion of in­form­a­tion “about” tar­gets. Pri­vacy ad­voc­ates are press­ing the Sen­ate to strip the lan­guage out, and are hop­ing PCLOB will join their fight.

3. Will the re­port re­veal new de­tails about NSA spy­ing?

Aside from the board’s re­com­mend­a­tions for re­forms, the re­port will also be im­port­ant just for its de­scrip­tion of spy­ing un­der Sec­tion 702. The re­port could help the pub­lic un­der­stand the pro­grams and could re­veal new de­tails about NSA sur­veil­lance.

“I think it’ll im­pact the de­bate in Con­gress by provid­ing the pub­lic with a very good over­view of how Sec­tion 702 works,” said Mark Jay­cox, a le­gis­lat­ive for the Elec­tron­ic Fron­ti­er Found­a­tion. “Cur­rently, there are still many ques­tions about how ex­actly 702 is used.”

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