US privacy board defends conclusion that foreign surveillance is legal

The NSA's foreign surveillance programs comply with US law and are effective in stopping terrorism, the board says

A U.S. National Security Agency surveillance program targeting foreign terrorism suspects does what Congress intended it to do, members of a government privacy oversight board said Wednesday, defending their report that finds the spying legal and effective.

The NSA's surveillance program, focused on collecting electronic communications related to foreign terrorism and other intelligence, works as described in the FISA Amendments Act, a law that was debated in public, the U.S. Privacy and Civil Liberties Oversight Board (PCLOB) said in its report, released late Tuesday.

The surveillance program's "inadvertent" collection of some U.S. communications means the agency must consider the Fourth Amendment to the U.S. Constitution, which protects the country's residents against unreasonable searches by the government, but the Fourth Amendment does not protect foreigners, PCLOB members noted.

Although some privacy advocates have criticized the report, the FISA Amendments Act, "as originally written," doesn't give the same privacy protections to foreigners as it does to U.S. residents, said PCLOB member Patricia Wald, a retired federal judge. "It's oriented toward getting foreign intelligence information."

The FISA surveillance program provides some privacy protections, added David Medine, the PCLOB's chairman. The law requires the NSA to target its surveillance at specific people or groups, with the agency focusing on 90,000 targets in 2013, he noted.

"While that's not an insignificant number, it's tiny, compared to the billions of people around the world," he said.

The PCLOB also plans to weigh in on President Barack Obama's proposal from January to add more privacy protections for foreigners into the NSA's surveillance programs, Medine said.

Board members also defended the foreign surveillance program as effective, in contrast to a separate NSA program collecting U.S. telephone records. The PCLOB, in a January report , said the telephone records program had "only limited value" and violated the Constitution.

But the foreign surveillance program has been a valuable piece of the U.S. government's counterterrorism efforts, said board member Elisebeth Collins Cook, a lawyer.

The program has helped government agents learn "about the membership, leadership structure, priorities, tactics and plans of international terrorist organizations," she said. The program has also "allowed the discovery and disruption of plots against the U.S. and foreign countries, she added.

The new report provides the most comprehensive examination of the NSA's foreign surveillance programs, board members said. It also dispels several misconceptions about the programs, one being that foreign surveillance, like the U.S. telephone records collection, indiscriminately collects electronic communications in bulk, Medine said.

While the NSA has said it collects millions of foreign emails, telephone calls and other electronic communications, the program is not a "bulk" collection program because it targets specific suspects, Medine said. Asked how he would describe the surveillance, if not "bulk" collection, Medine said, "It's a big program, but it's not a bulk program."

The PCLOB's report makes 10 recommendations for changes to the NSA's foreign surveillance programs. Among the recommendations: The NSA should specify the expected intelligence value of a target before collecting communications, and the FBI, which can query the NSA's database in U.S. criminal investigations, should better describe its data minimization practices related to the NSA's database.

The report cautioned that the incidental collection of communications of U.S. residents raises privacy concerns. The report's recommendations should help push the NSA surveillance programs "more comfortably into the sphere of reasonableness," Medine said.

Some privacy advocates slammed the report, saying it ignores concerns about a lack of judicial oversight for the NSA's foreign surveillance.

"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," said Kevin Bankston, policy director of the New American Foundation's Open Technology Institute, by email.

The reforms proposed by the board "essentially boil down to suggesting that the government should do more and better paperwork and develop stricter internal protocols as a check against abuse," he added.

Just weeks after the U.S. House of Representatives voted to end the NSA's query of U.S. communications caught up in its foreign surveillance efforts, the board's endorsement of "warrantless rummaging through our communications," is disappointing, Bankston added.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.

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Tags telecommunicationU.S. National Security AgencyKevin BankstonNew American Foundation's Open Technology InstitutegovernmentinternetprivacyPatricia WaldU.S. Privacy and Civil Liberties Oversight BoardDavid MedineElisebeth Collins CooksecurityU.S. House of Representatives

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