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POGO and Allies Urge Improvements to Surveillance Law

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This week, the Project On Government Oversight and its partners in the transparency community submitted a comment to the Privacy and Civil Liberties Oversight Board (PCLOB). PCLOB, an independent agency created in 2004, was only activated last May following the long-awaited confirmation of the Board’s chairman. It is charged with ensuring that the best efforts to keep the United States safe are balanced with an adequate and appropriate respect for privacy and civil liberties.

On July 9, 2013, in response to the Edward Snowden whistleblowing disclosures, PCLOB held a public hearing that explored the legal, technological, and policy justifications and implications of electronic surveillance conducted under Section 215 of the PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act Amendments Act. (You can read a full transcript of the hearing here.)

As POGO discussed in June, Section 215 permits the collection of “any tangible things” that are “relevant” to an authorized investigation to protect against international terrorism or clandestine intelligence activities. As a result of the Snowden whistleblowing disclosures, the public learned that the government is using Section 215 to collect the telephone metadata of millions of U.S. citizens without individualized suspicion.

Section 702 authorizes the creation of year-long surveillance programs under which the government can order electronic communications service providers such as Apple and Google to turn over the communications of non-U.S. persons. Although the law prohibits the government from “intentionally” targeting persons inside the U.S., Snowden’s disclosures revealed that Section 702 programs are collecting the conversations of U.S. citizens who communicate with persons outside the U.S. At the July 9 PCLOB hearing, government officials further admitted that the “special purpose” of Section 702 programs is to collect communications flowing in and out of the country.

The revelations about Sections 215 and 702 raise serious questions about how to preserve privacy and fundamental civil liberties while also protecting this country from violent attack. That we only learned of these questionable programs through whistleblowing disclosures further highlights the need to end secret law, the practice by which the laws passed by Congress are interpreted and applied behind closed doors by a small group of government officials and federal judges.

In response to the recently revealed programs, POGO, OpenTheGovernment.org, and National Security Counselors have presented a number of recommendations to create a more transparent and accountable national security apparatus. Together, we urge PCLOB to recommend that the President and Congress take critical action to:

  • Ensure that all government surveillance programs that affect privacy and civil liberties have a unique benefit. The government should be able to tell the American public whether information necessary to impede violent attacks could not be gained by less invasive surveillance measures.
  • Ensure that the rights and interests of the American public are protected during Foreign Intelligence Surveillance Court (FISC) hearings. FISC approves government requests for surveillance under Sections 215 and 702, but these proceedings are currently one-sided—no lawyer represents the rights of millions of U.S. persons whose personal information will be collected. The lack of opposing counsel undermines a basic principle of the U.S. legal system: adversarial legal proceedings. We urge the creation of a panel of attorneys housed in PCLOB who would advocate on behalf of the American public before FISC.
  • Facilitate congressional and public debate around critical national security issues by aligning the sunset dates for Sections 215 and 702 to June 1, 2015.
  • Ensure accountability by clearly stating for how long metadata and other information collected by these surveillance programs can be retained in government databases. The government should also state with whom such information can be shared, under what circumstances, and with what reporting requirements.
  • Facilitate transparency by publicly releasing declassified versions of legal documents that substantively interpret the PATRIOT Act and FISA.
  • Promote government accountability and greater public awareness by requiring the executive branch to produce and release reports on national security policies and surveillance programs.
  • Encourage transparency by creating a 30-day limit on the currently unlimited gag-orders that silence entities receiving Section 215 or 702 orders. A 30-day limit would allow communications providers such as Microsoft and Yahoo! to inform the public whenever they are required to hand over sensitive, personal information.

These recommendations follow on the heels of a letter submitted by 60 groups, including POGO, to the Senate Judiciary Committee. The letter urges Congress to enact legislation that reforms Sections 215 and 702 to limit warrantless surveillance of U.S. persons, and presses for the release of FISC opinions.

Angela Canterbury, POGO’s Director of Public Policy, said:

We are pleased that the PCLOB is reviewing this country’s national security laws and policies. We hope they will recommend changes that better balance U.S. security with government accountability, the people’s right to know, privacy, and other fundamental civil liberties.

Image from Flickr user Christoph.

By: Aimee Thomson
Legal Intern, POGO

Photograph of Aimee Thomson At the time of publication Aimee Thomson was a legal intern for the Project On Government Oversight.

Topics: Government Accountability

Related Content: Government Secrecy, Homeland Security, Intelligence, Surveillance

Authors: Aimee Thomson

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