The Electronic Frontier Foundation (EFF) isn’t enthused with a report from the Privacy and Civil Liberties Oversight Board (PCLOB) concerning government surveillance under Section 702 of the Foreign Intelligence Surveillance Act. The current report generally upheld the program, offering a few motes of potential reform as suggestions. The report was, I think it fair to say, expected to have more teeth.
PCLOB previously made friends among activists by indicating in a prior report that certain bulk surveillance under Section 215 of the Patriot Act is unconstitutional.
The EFF, often the voice of dissent on this sort of issue, called the report “legally flawed and factually incomplete.” Its core argument against the report is that it fails to properly deal with the issue of upstream collection, that it doesn’t handle privacy protection for non-U.S. persons, and that the document hides “behind the ‘complexity’ of the technology” employed by the U.S. government in its surveillance efforts.
Regarding so-called “upstream” collection (when the NSA taps directly into the cables that make up the core network of the Internet), the EFF finds the PCLOB report missing the core point at hand — that the “government has access to or is acquiring nearly all communications that travel over the Internet.” Instead it focuses on how that information is queried. It therefore all but endorses the collection itself, on a chronic basis, of such a large firehose of information that it can’t help but include the communication of Americans.
The EFF also dismisses the PCLOB’s constitutional analysis, stating that the Fourth Amendment “requires a warrant for searching the content of communication” and that under “Section 702, the government searches through content without a warrant.”
We’ll have to wait and see what impact the new report has, particularly in the Senate. The group’s earlier report didn’t appear to have much influence outside of the activist community.