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PCLOB to Examine Legal Underpinnings of NSA Surveillance

Government surveillance oversight
Government surveillance oversight
Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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March 19, 2014

Today, the ACLU’s Jameel Jaffer will appear before the Privacy and Civil Liberties Oversight Board as its members question government officials, privacy advocates, law professors, and policy experts about the government’s surveillance programs operating under the FISA Amendments Act (“FAA”), also known as Section 702 of the Foreign Intelligence Surveillance Act.

The board — known as the “PCLOB” — is holding its third workshop since last June’s initial revelations about NSA surveillance. In December, the PCLOB released a meticulous and devastating report about the government’s bulk collection of Americans’ phone records under Section 215 of the Patriot Act, concluding that the program violates the plain terms of Section 215.

The PCLOB is now turning its attention to the FAA, the legal foundation for the government’s PRISM program and its “Upstream” collection of communications from U.S. telecommunications providers.

In testimony provided to the board in advance of today’s meeting, the ACLU argues — as it has in litigation, notably in Amnesty International USA v. Clapper and United States v. Muhtorov — that the FAA is unlawful. The statute violates the Fourth Amendment because it permits the warrantless surveillance of American’s international communications on a truly massive scale. The testimony also makes the case that the government’s implementation of the FAA — about which we’ve learned much over the past nine months — violates the text of the statute itself:

First, while the statute was intended to augment the government’s authority to collect international communications, the NSA’s targeting and minimization procedures give the government broad authority to collect purely domestic communications as well. Second, while the statute was intended to give the government authority to acquire communications to and from the government’s targets, the NSA’s procedures also permit the government to acquire communications “about” those targets. And, third, while the statute prohibits so-called “reverse targeting,” the NSA’s procedures authorize the government to conduct “backdoor” searches of communications acquired under the FAA using selectors associated with particular, known Americans. Thus, even if the statute itself is lawful, the NSA’s implementation of it is not.

The PCLOB’s meeting about Section 702 will air live on C-SPAN 2, and can be streamed here.

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