A U.S. government board focused on privacy and civil rights should push Congress to rein in the National Security Agency’s mass collection of telephone records and Internet communications, privacy advocates said Tuesday.
The U.S. Privacy and Civil Liberties Oversight Board, established by Congress in 2004 to be a watchdog of government antiterrorism efforts, should also demand that the NSA and other government agencies be more transparent about the data they collect, said privacy advocates speaking at a board meeting in Washington, D.C.
Looking for oversight
While two former government officials defended the NSA’s collection of U.S. phone records and overseas Internet communications, other speakers told the board the agency has exceeded its legal authority, particularly when collecting U.S. records. Recent revelations about NSA data collection and surveillance show a lack of congressional and court oversight, said Jameel Jaffer, a lawyer with the American Civil Liberties Union.
Congress needs to limit what information the NSA and law enforcement agencies collect because internal privacy safeguards won’t work, Jaffer said. “You don’t know what the privacy safeguards are going to look like three years from now, five years from now” when there may be another terrorist attack, he said.
Board member Patricia Wald, an appeals court judge, asked if the NSA should be able to collect large amounts of data about U.S. residents, then have data minimization rules that limit what the agency can do with the data.
“Minimization is one of the great euphemisms of our time,” said James Robertson, a former Foreign Intelligence Surveillance Court judge who’s criticized current surveillance practices. “No one knows what it means.”
The surveillance court now appears to be issuing opinions on policy in addition to approving surveillance requests, Robertson said. The policy rulings are not in the court’s authority, he and other privacy advocates told the board.
Technology not enough
Asked if the NSA could protect privacy through technological safeguards on the use of the data collected, some participants suggested a technology solution wasn’t enough. Technology can only implement policy, said Steven Bellovin, a computer science professor at Columbia University.
As the NSA collects more and more data, it will find new ways to use it, said Marc Rotenberg, president of the Electronic Privacy Information Center (EPIC). “A threshold is crossed once the data is collected,” he said. “There’s no guarantee the safeguard will remain over time.”
But the NSA and other agencies are already collecting massive amounts of data, said Daniel Weitzner, director of the Decentralized Information Group at the Massachusetts Institute of Technology’s Computer Science and Artificial Intelligence Laboratory. It would be useful for privacy advocates to work both on changing U.S. policies and on implementing technological limits on what the NSA can do with the data it collects, said Weitzner, a former deputy CTO in President Barack Obama’s administration.
“All the useful data has been collected,” he said.
The surveillance court and the NSA should be more transparent about the data collected, and the court should publish some of its orders, some panelists said. Part of the reason for concern about the surveillance is that the “searches are done in secret,” said Kate Martin, director of the Center for National Security Studies, a civil liberties watchdog group.
But it makes sense that the NSA doesn’t broadcast the targets of its surveillance, said Kenneth Wainstein, a former White House homeland security adviser. The surveillance court process, which doesn’t include a lawyer arguing against the surveillance, mirrors criminal wiretap requests, he said.
“We trust judges” to scrutinize surveillance requests, he said.
Still, Wainstein said there may be some merit in creating a new role for a public advocate during the surveillance court’s process because it may restore some public confidence in the process, Wainstein said.
Wainstein and Steven Bradbury, formerly with the U.S. Department of Justice’s Office of Legal Counsel, defended the surveillance efforts, saying they are necessary to protect the U.S. from terrorism. Despite the recent uproar about the programs prompted by leaks from former NSA contractor Edward Snowden, the U.S. shouldn’t significantly limit the surveillance because of some “speculative concerns down the road,” Wainstein said.
Bradbury questioned the suggestion to include a public advocate in the surveillance court process. The current process is “workable,” he said.
Board member James Dempsey, vice president for public policy at the Center for Democracy and Technology, called on privacy advocates to propose concrete ideas for fixing the surveillance process and on defenders to engage in the debate.
“It can’t be that everything is perfect,” he said to Wainstein and Bradbury. “It can’t be that no changes can be made.”