(Editor’s Note: The following is a guest blog post from Kevin Bankston, Policy Director of the Open Technology Institute at New America)
Earlier this month, the Privacy and Civil Liberties Oversight Board (PCLOB) released its long-awaited report on the National Security Agency’s surveillance of Internet and telephone communications under Section 702 of the FISA Amendments Act of 2008.
This is the independent executive branch agency’s second report on NSA surveillance, following a January report by the board recommending an end to the NSA’s bulk collection of phone records under Section 215 of the USA PATRIOT Act.
If the Board’s last report on the bulk collection of phone records was a bombshell, this one is a dud. The surveillance authority the Board examined in this report, Section 702 of 2008’s FISA Amendments Act, is in many ways much more worrisome than the bulk collection program. As the Board itself explains, that law has been used to authorize the NSA’s wiretapping of the entire Internet backbone, so that the NSA can scan untold numbers of our emails and other online messages for information about tens of thousands of targets that the NSA chooses without individualized court approval. Yet the reforms the Board recommends today regarding this awesome surveillance power are much weaker than those in their last report, and essentially boil down to suggesting that the government should do more and better paperwork and develop stricter internal protocols as a check against abuse.
As Chief Justice Roberts said just last week, “the Founders did not fight a revolution to gain the right to government agency protocols,” they fought to require search warrants that are based on probable cause and specifically identify who or what can be searched. Yet as we know from documents released earlier this week, government agents are searching through the data they’ve acquired through this surveillance authority–an authority that was sold to Congress as being targeted at people outside the US–tens of thousands of times a year without having to get a warrant first.
The fact that the Board has endorsed such warrantless rummaging through our communications, just weeks after the House of Representatives voted almost three to one to defund the NSA’s “backdoor” searches of Americans’ data, is a striking disappointment. The Board is supposed to be an independent watchdog that aggressively seeks to protect our privacy against government overreach, rather than undermining privacy by proposing reforms that are even weaker than those that a broad bipartisan majority of the House has already endorsed.
We are grateful to the Board for its last report and are grateful to them now for laying out, in the clearest and most comprehensive way we’ve seen so far, exactly how the NSA is using its surveillance authority. But Congress shouldn’t wait for the NSA to take the Board’s weak set of recommendations and get its own house in order. Congress should instead move forward with strong reforms that protect our privacy and that tell the NSA, as the Supreme Court told the government last week: if you want our data you need to come back with a warrant.