A national security watchdog panel on Wednesday approved a soft-hitting report on one of the National Security Agency’s data collection programs, saying it is legal and provoking critics who say the program actually sweeps up Americans’ data through a “backdoor loophole.”
Deviating from its previous criticism, the Privacy and Civil Liberties Oversight Board described the NSA program, which targets non-citizens and is authorized by Section 702 of the Foreign Intelligence Surveillance Act, as borderline constitutional and widely effective. The board only recommended minor procedural changes to the program’s operations.
Long regarded as toothless, the oversight panel made waves in January when it blasted the NSA’s other sweeping dragnets of Americans’ telephone metadata, contending that those programs are illegal and should be terminated.
But surveillance of non-citizens, the board concluded, is lawful and matches with what Congress intended in its legislation, unlike the NSA’s domestic program, which board chairman David Medine said was “shoehorned” into legal language that didn’t quite fit.
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Despite the fact that the 702 program taps into U.S. Internet servers to acquire the foreign communications, Medine and fellow board members said the program has adequate safeguards.
Although frequently lumped together as “Snowden revelations” – programs revealed by former NSA contractor Edward Snowden over a year ago – the two NSA programs have distinct differences, as the board points out in its 191-page report. Where the domestic program collects communications in bulk from third-party telecommunications companies, the other only targets the communications of non-U.S. citizens overseas.
Here, some lawmakers say, is where the problem comes in: Any U.S. person who has communicated with said foreign target will be swept up in the collected data. Longtime surveillance critic Ron Wyden, D-Ore., called it the “backdoor loophole.”
“Intelligence agencies have indeed conducted warrantless searches for Americans’ communications using the `backdoor search' loophole in Section 702 of the Foreign Intelligence Surveillance Act,” Wyden said in a joint statement with Sen. Mark Udall, D-Colo., in April. “Meaningful surveillance reform must include closing the backdoor searches loophole and requiring the intelligence community to show probable cause before deliberately searching through data collected under Section 702 to find the communications of individual Americans.”
But the oversight board says that no such loophole exists and that the intelligence community has never exploited the communications of U.S. citizens.
“We have seen no evidence of a back door, so our recommendations are designed to make sure that one is not built,” said board member Elisebeth Collins Cook.
In addition, said Medine, “The board has found no indication of intentional abuse.”
Wyden had no immediate reaction to the report, but an aide said the senator “is looking forward to taking an in-depth look at the board’s recommendation in the days ahead.”
Meanwhile, intelligence officials praised the panel’s conclusions, with Director of National Intelligence James Clapper saying the panel’s policy recommendations would be taken into consideration.
“We welcome the report of the Privacy and Civil Liberties Oversight Board on Section 702 of the Foreign Intelligence Surveillance Act,” Clapper said in a statement. “We take very seriously the board’s concerns regarding privacy and civil liberties, and we will review the board’s recommendations with care.”