Oversight Board Backs Warrantless Surveillance Program, Proposes Minor Reforms

Today, the Privacy and Civil Liberties Oversight Board will vote to approve its report, made public last night, on the collection of electronic communications under Section 702 of the FISA Amendments Act. Elizabeth Goitein and Faiza Patel, co-directors of the Liberty and National Security Program at the Brennan Center for Justice, are available for your coverage and analysis.

The Board took the view that warrantless surveillance of Americans’ international communications is a useful counterterrorism tool and consistent with the FISA Amendments Act. According to the Board, the “core” of the program passes muster under the Fourth Amendment, although other aspects veer close to the constitutional line and raise policy concerns.

“Sadly, the Board has failed to fulfill its responsibility here, which is to ensure that counterterrorism policies safeguard privacy and civil liberties,” said Elizabeth Goitein. “The collection of Americans’ phone calls and e-mails without a warrant is unconstitutional, regardless of whether they are communicating with their next-door neighbor or a suspected terrorist overseas. The Board, however, endorsed a ‘foreign intelligence exception’ to the Fourth Amendment’s warrant requirement that is far broader than what any regular federal court has ever recognized. The Board’s recommendations would leave in place the government’s ability to spy on its citizens – along with their friends, family members, and business partners overseas – without any suspicion of wrongdoing.”

Remarkably, the Board gave short shrift to concerns about the potential for abuse of this massive collection program. Its ten recommended changes were small bore in nature, mostly directed at the government’s internal procedures and documentation requirements. Conspicuously absent were any key protections proposed by privacy advocates, such as narrowing the statute’s sprawling definition of “foreign intelligence” or limiting surveillance to communications with foreign powers or their agents. Perhaps most notably, the Board would allow the government to continue the practice of “back door searches”: collecting calls and e-mails without a warrant on the ground that only foreigners are being targeted, but then searching through these communications for information about Americans.

“The Board would leave the ‘back door search loophole’ wide open,” said Goitein. “This duplicitous practice is inconsistent with the letter and spirit of the law, which is why the House recently voted to end it. It also highlights the mission creep that can occur when intelligence agencies are given highly intrusive authorities in the name of defending against foreign threats.”

The report did acknowledge that foreigners have privacy rights under the International Covenant on Civil and Political Rights, as well as a limited set of protections under U.S. law. It noted that President Obama recently issued a presidential directive, known as “PPD-28,” requiring agencies to implement certain limits on its surveillance of non-citizens overseas – a process that is ongoing.

“The Board made a critical point that has often been overlooked in the NSA debate: that privacy is a human right protected under international law,” said Faiza Patel. “Unfortunately, the Board did not take the opportunity to provide guidance on this issue but rather decided to address it when it weighs on the implementation of PPD-28. But the issue is much larger than simply the implementation of the directive and the Board should take it on directly and expeditiously.” 

“We urge Congress to recognize the gaps and shortcomings in the Board’s recommendations, and provide a more meaningful level of privacy protection for Americans and foreigners alike.”

To set up an interview, please contact Seth Hoy at 646–292–8369 or seth.hoy@nyu.edu.