The PCLOB Report On Section 702

Published On July 7, 2014 | By Marc Zwillinger | International
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On July 1, 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) issued its final report on Section 702 of FISA. Significantly, the PCLOB found that Section 702 and its implementation are constitutional, though certain members of the Board disagreed as to whether the so-called “back door loophole” related to searching already-acquired communications using the selectors for U.S. persons should be tightened or expanded. The Board’s report comes after a series of hearings and investigations into the inner workings of Section 702. The report itself is to be commended as one of the most detailed descriptions of the 702 program — including a thorough discussion of the mechanics of “upstream” collection — to be publicly released by any part of the government. To that extent, it is a helpful resource for providers who may not previously have understood their role in the Section 702 program. It is also an affirmation for those providers who may have previously complied with directives issued under 702 that whatever modifications may be made in the future to the program, no defects were so obvious as to have made their compliance unreasonable or unjustified. Indeed, the PCLOB found neither constitutional defects nor bad faith actions by the government at all in connection with the PRISM aspect of the program in which providers were compelled to participate.

Though the report has no binding impact on courts, it may be influential in pending cases involving the constitutionality of Section 702 and to Congress as it considers amending FISA to enhance privacy protections. While finding no illegitimate use of 702 for queries for U.S. persons and that the checks and minimization procedures for 702 seem in order, the PCLOB (and certain members thereof) offer recommendations to specifically enhance the following areas: understanding of incidental collection of U.S. person communications, the certification and re-certification process before the FISA court, and transparency about Section 702 implementation.

The Board’s specific policy recommendations include:

  • Revising the targeting procedures to specify criteria for determining the expected foreign intelligence value of a particular target with a written explanation of the basis for that decision
  • Limiting the use of queries for U.S person data to situations where there is demonstrated foreign intelligence need
  • Enhance 702 certification/recertification procedures to: (a) include samples of taskings and other uses of 702 authority; (b) include more information on internal procedures, rules and guidelines that have been developed for 702 compliance purposes
  • Reviewing and updating the filtering technology used for upstream “about” collections (collections that are about a foreign intelligence target, rather than sent to or from that target) to ensure that the government is only acquiring authorized communications
  • Consider technical measures to limit “about” communications particularly between two U.S. persons
  • Enhance transparency on 702 implementation: (a) by releasing more information on minimization procedures; and (b) enhancing reporting on all statistics which reflect a U.S. connection (e.g. one end of a phone call; one end of an email; and “about” communication, etc.)

With regard to the very controversial “backdoor loophole,” the Board divided over whether the use of U.S. person queries to search communications that had been properly acquired under the 702 collection programs should be restricted even further than recommended in the body of the report. The head of the Board, David Medine and board member Patricia Wald recommended additional FISA court approval of U.S person related queries. Board members Brand and Cook advocated instead to allow broad use of “queries” of U.S person data from the already-acquired communications, even for criminal purposes.

It had been widely expected, especially by many in the civil liberties and privacy communities, that the PCLOB would more sharply criticize the program and its legal foundations. Despite the balanced make-up of the Board, which, if anything, tilted away from being pre-disposed towards supporting the government, the PCLOB report essentially concluded that while the program needs some tweaking, it is a reasonable implementation of surveillance techniques consistent with the authorizing statute and the U.S. Constitution. Although this conclusion has generated some intense criticism by advocates, including the EFF, it is a “win” for the government and the NSA, and will likely start to roll back the recent tide of criticism directed at the government’s surveillance efforts under 702.

Of course, a blog post cannot capture all of the nuance of the PCLOB’s 150 page report. For more details and analysis, feel free to contact us.

Feature Photo by Ludovic Bertron from Flickr
Side Photo by James Cape from Flickr 

About The Author

Marc is the founder and managing member of ZwillGen PLLC and has been regularly providing advice and counsel on issues related to the increasingly complex laws governing Internet practices, including issues related to Electronic Communications Privacy Act (“ECPA”), the Wiretap and Communication Acts, privacy, CAN-SPAM, FISA, spyware, adware, Internet gambling and adult-oriented content. He also helps Internet Service Providers and other clients comply with their compliance obligations pertaining to the discovery and disclosure of customer and subscriber information.

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