Federal Privacy Oversight Board: Phone Metadata Collection Bad; Internet Metadata Collection Good

In January, the federal bipartisan five-person Privacy and Civil Liberties Board released its first evaluation of the National Security Agency's (NSA) bulk metadata collection, which swept up significant amounts of information about Americans' private communications, both through phones and online. January's report (pdf) was focused on the bulk telephone metadata collection. One of the board's conclusions was that bulk phone data collection had "serious implications for privacy and civil liberties," and recommended alternative means of collecting data.

Now the board released a new report, focusing on the NSA collecting mass amounts of metadata about Internet users, rather than phone users. In this case, the board determined that this mass collection was legal. Notes Wired:

The Privacy and Civil Liberties Board concluded, in its long-awaited report released Tuesday night, that the collection program—which involves obtaining data from service providers like Google and Yahoo using an order from the FISA Court—is clearly legal and authorized under Section 702 of the Foreign Intelligence Surveillance Act. The board also concluded that the collection of data from upstream sources, such as by tapping undersea cables, is also authorized by the statute "as [that program] is currently implemented."

While the board found that certain aspects of the program are questionable and "push the program close to the line of constitutional reasonableness," essentially its five members concluded unanimously that the core of the so-called Section 702 program is "clearly authorized by Congress, reasonable under the Fourth Amendment, and an extremely valuable and effective intelligence tool."

The new report can be viewed here (pdf).

Unhappy Responses

Civil rights and tech-focused privacy groups are obviously concerned about the report. Here's the American Civil Liberties Union (ACLU):

ACLU Deputy Legal Director Jameel Jaffer, who testified before the board about Section 702 in March, had this reaction:

"This is a weak report that fails to fully grasp the civil liberties and human rights implications of permitting the government sweeping access to the communications of innocent people. It is jarring to read this report just weeks after the House voted to limit the NSA's 'backdoor' searches, and just days after the Supreme Court's cell-phone-search decision defending privacy rights in the digital age. The Supreme Court, Congress, and the American people have recognized the need for fundamental reform. It is disappointing that the board's report does not."

With the Office of the Federal Public Defender in Denver, the ACLU is currently litigating a challenge to the FAA's constitutionality on behalf of the first criminal defendant to be notified that he was surveilled under the law. In the case, Jamshid Muhtorov has filed a motion to suppress evidence produced by the NSA spying, and the court is expected to schedule oral argument later this summer. In another case in Portland last Thursday, U.S. v. Mohamud, the district court denied a similar challenge.

Here's what the Electronic Frontier Foundation (EFF) had to say:

Hiding behind the "complexity" of the technology, it gives short shrift to the very serious privacy concerns that the surveillance has rightly raised for millions of Americans. The board also deferred considering whether the surveillance infringed the privacy of many millions more foreigners abroad.

The board skips over the essential privacy problem with the 702 "upstream" program: that the government has access to or is acquiring nearly all communications that travel over the Internet. The board focuses only on the government's methods for searching and filtering out unwanted information. This ignores the fact that the government is collecting and searching through the content of millions of emails, social networking posts, and other Internet communications, steps that occur before the PCLOB analysis starts.  This content collection is the centerpiece of EFF's Jewel v. NSA case, a lawsuit battling government spying filed back in 2008.

The board's constitutional analysis is also flawed.  The Fourth Amendment requires a warrant for searching the content of communication. Under Section 702, the government searches through content without a warrant. Nevertheless, PCLOB's analysis incorrectly assumes that no warrant is required. The report simply says that it "takes no position" on an exception to the warrant requirement when the government seeks foreign intelligence. The Supreme Court has never found this exception.

Both groups have cases in the courts challenging the legality of gathering this data.