The Snowden Reader

by David P Fidler

  To be sure, detailed rules . . . limit the NSA’s use of the telephone records it collects. . . . But in our view, they cannot fully ameliorate the implications for privacy, speech, and association that follow from the government’s ongoing collection of virtually all telephone records of every American. Any governmental program that entails such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone records program conducted under Section 215 meets that standard.

  D. Operation of the Foreign Intelligence Surveillance Court

  Congress created the FISA court in 1978 in response to concerns about the abuse of electronic surveillance. This represented a major restructuring of the domestic conduct of foreign intelligence surveillance, with constitutional implications. Prior to then, successive Presidents had authorized national security wiretaps and other searches solely on the basis of their executive powers under Article II of the Constitution. The Foreign Intelligence Surveillance Act (“FISA”) of 1978 provided a procedure under which the Attorney General could obtain a judicial warrant authorizing the use of electronic surveillance in the United States for foreign intelligence purposes.

  Over time, the scope of FISA and the jurisdiction of the FISA court have evolved. Initially, the FISC’s sole role was to approve individualized FISA warrants for electronic surveillance relating to a specific person, a specific place, or a specific communications account or device. Beginning in 2004, the role of the FISC changed when the government approached the court with its first request to approve a program involving what is now referred to as “bulk collection.” In conducting this study, the Board was told by former FISA court judges that they were quite comfortable hearing only from government attorneys when evaluating individual surveillance requests but that the judges’ decision making would be greatly enhanced if they could hear opposing views when ruling on requests to establish new surveillance programs.

  Upon the FISC’s receipt of a proposed application, a member of the court’s legal staff will review the application and evaluate whether it meets the legal requirements under FISA. The FISC’s legal staff . . . serve as staff to the judges rather than as advocates. . . . The FISA court process for considering applications may include a hearing, and FISC judges have the authority to take testimony from government employees. . . . FISA does not provide a mechanism for the court to invite non-governmental parties to provide views on pending government applications or otherwise participate in FISC proceedings. . . .

  FISA also established a Foreign Intelligence Surveillance Court of Review (“FISCR”). . . . Electronic communications service providers have some limited ability to appeal FISC orders, but FISA does not provide a way for the FISCR to receive the views of other non-governmental parties on appeals pending before it.

  The FISC’s ex parte, classified proceedings have raised concerns that the court does not take adequate account of positions other than those of the government. It is critical to the integrity of the process that the public has confidence in its impartiality and rigor. Therefore, the Board believes that some reforms are appropriate and would help bolster public confidence in the operation of the court. The most important reforms . . . are: (1) creation of a panel of private attorneys, Special Advocates, who can be brought into cases involving novel and significant issues by FISA court judges; (2) development of a process facilitating appellate review of such decisions; and (3) providing increased opportunity for the FISC to receive technical assistance and legal input from outside parties.

  E. Transparency Issues

  In a representative democracy, the tension between openness and secrecy is inevitable and complex. The challenges are especially acute in the area of intelligence collection, where the powers exercised by the government implicate fundamental rights and our enemies are constantly trying to understand our capabilities in order to avoid detection. In this context, both openness and secrecy are vital to our survival, and we must strive to develop and implement intelligence programs in ways that serve both values.

  Transparency is one of the foundations of democratic governance. Our constitutional system of government relies upon the participation of an informed electorate. This in turn requires public access to information about the activities of the government. Transparency supports accountability. It is especially important with regard to activities of the government that affect the rights of individuals, where it is closely interlinked with redress for violations of rights. In the intelligence context, although a certain amount of secrecy is necessary, transparency regarding collection authorities and their exercise can increase public confidence in the intelligence process and in the monumental decisions that our leaders make based on intelligence products.

  In the aftermath of the Snowden disclosures, the government has released a substantial amount of information on the leaked government surveillance programs. Although there remains a deep well of distrust, these official disclosures have helped foster greater public understanding of government surveillance programs. However, to date the official disclosures relate almost exclusively to specific programs that had already been the subject of leaks, and we must be careful in citing these disclosures as object lessons for what additional transparency might be appropriate in the future.

  The Board believes that the government must take the initiative and formulate long-term solutions that promote greater transparency for government surveillance policies . . . in order to inform public debate on technology, national security, and civil liberties going beyond the current controversy. In this effort, all three branches have a role. For the executive branch, disclosures about key national security programs that involve the collection, storage and dissemination of personal information . . . show that it is possible to describe practices and policies publicly, even those that have not been otherwise leaked, without damage to national security or operational effectiveness.

  With regard to the legislative process, even where classified intelligence operations are involved, the purposes and framework of a program for domestic intelligence collection should be debated in public. During the process of developing legislation, some hearings and briefings may need to be conducted in secret to ensure that policymakers fully understand the intended use of a particular authority. But the government should not base an ongoing program affecting the rights of Americans on an interpretation of a statute that is not apparent from a natural reading of the text. In the case of Section 215, the government should have made it publicly clear in the reauthorization process that it intended for Section 215 to serve as legal authority to collect data in bulk on an ongoing basis.

  There is also a need for greater transparency regarding operation of the FISA court. Prospectively, we encourage the FISC judges to continue the recent practice of writing opinions with an eye to declassification, separating specific sensitive facts peculiar to the case at hand from broader legal analyses. We also believe that there is significant value in producing declassified versions of earlier opinions, and recommend that the government undertake a classification review of all significant FISC opinions and orders involving novel interpretations of law. . . . In addition, should the government adopt our recommendation for a Special Advocate in the FISC, the nature and extent of that advocate’s role must be transparent to be effective.

  It is also important to promote transparency through increased reporting to the public on the scope of surveillance programs. We urge the government to work with Internet service providers and other companies to reach agreement on standards allowing reasonable disclosures of aggregate statistics that would be meaningful without revealing sensitive government capabilities or tactics. We recommend that the government should also increase the level of detail in its unclassified reporting to Congress and the public regarding surveillance programs.

  II. Overview of the PCLOB’s Recommendations

  A. Section 215 Program

  Recommendation 1: The government should end its Section 215 bulk telephone records program.


  The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program.

  Without the current Section 215 program, the government would still be able to seek telephone calling records directly from communications providers through other existing legal authorities. The Board does not recommend that the government impose data retention requirements on providers in order to facilitate any system of seeking records directly from private databases.

  Once the Section 215 bulk collection program has ended, the government should purge the database of telephone records that have been collected and stored . . . , subject to limits on purging data that may arise under federal law or as a result of any pending litigation.

  The Board also recommends against the enactment of legislation that would merely codify the existing program or any other program that collects bulk data on such a massive scale regarding individuals with no suspected ties to terrorism or criminal activity. Moreover, the Board’s constitutional analysis should provide a message of caution, and as a policy matter, given the significant privacy and civil liberties interests at stake, if Congress seeks to provide legal authority for any new program, it should seek the least intrusive alternative and should not legislate to the outer bounds of its authority.

  The Board recognizes that [if] the government . . . need[s] a short period of time to . . . wind down the 215 program . . . it should follow . . . Recommendation 2 below.

  Recommendation 2: The government should immediately implement additional privacy safeguards in operating the Section 215 bulk collection program.

  The Board recommends that the government immediately implement several additional privacy safeguards to mitigate the privacy impact of the present Section 215 program. The recommended changes can be implemented without any need for congressional or FISC authorization. Specifically, the government should:

  (a) reduce the retention period for the bulk telephone records program from five years to three years;

  (b) reduce the number of “hops” used in contact chaining from three to two;

  (c) submit the NSA’s “reasonable articulable suspicion” determinations to the FISC for review after they have been approved by NSA and used to query the database; and

  (d) require a “reasonable articulable suspicion” determination before analysts may submit queries to, or otherwise analyze, the “corporate store,” which contains the results of contact chaining queries to the full “collection store.”

  B. FISA Court Operations

  Recommendation 3: Congress should enact legislation enabling the FISC to hear independent views, in addition to the government’s views, on novel and significant applications and in other matters in which a FISC judge determines that consideration of the issues would merit such additional views.

  Congress should authorize the establishment of a panel of outside lawyers to serve as Special Advocates before the FISC in appropriate cases. The Presiding Judge of the FISC should select attorneys drawn from the private sector to serve on the panel. The attorneys should be capable of obtaining appropriate security clearances and would then be available to be called upon to participate in certain FISC proceedings.

  The decision as to whether the Special Advocate would participate in any particular matter should be left to the discretion of the FISC. The Board expects that the court would invite the Special Advocate to participate in matters involving interpretation of the scope of surveillance authorities, other matters presenting novel legal or technical questions, or matters involving broad programs of collection. The role of the Special Advocate, when invited by the court to participate, would be to make legal arguments addressing privacy, civil rights, and civil liberties interests. The Special Advocate would review the government’s application and exercise his or her judgment about whether the proposed surveillance or collection is consistent with law or unduly affects privacy and civil liberties interests.

  Recommendation 4: Congress should enact legislation to expand the opportunities for appellate review of FISC decisions by the FISCR and for review of FISCR decisions by the Supreme Court of the United States.

  Providing for greater appellate review of FISC and FISCR rulings will strengthen the integrity of judicial review under FISA. Providing a role for the Special Advocate in seeking that appellate review will further increase public confidence in the integrity of the process.

  Recommendation 5: The FISC should take full advantage of existing authorities to obtain technical assistance and expand opportunities for legal input from outside parties.

  FISC judges should take advantage of their ability to appoint Special Masters or other technical experts to assist them in reviewing voluminous or technical materials, either in connection with initial applications or in compliance reviews. In addition, the FISC and the FISCR should develop procedures to facilitate amicus participation by third parties in cases involving questions that are of broad public interest, where it is feasible to do so consistent with national security.

  C. Promoting Transparency

  Recommendation 6: To the maximum extent consistent with national security, the government should create and release with minimal redactions declassified versions of new decisions, orders and opinions by the FISC and FISCR in cases involving novel interpretations of FISA or other significant questions of law, technology or compliance.

  FISC judges should continue their recent practice of drafting opinions in cases involving novel issues and other significant decisions in the expectation that declassified versions will be released to the public. The government should promptly create and release declassified versions of these FISC opinions.

  Recommendation 7: Regarding previously written opinions, the government should perform a declassification review of decisions, orders and opinions by the FISC and FISCR that have not yet been released to the public and that involve novel interpretations of FISA or other significant questions of law, technology or compliance.

  Although it may be more difficult to declassify older FISC opinions . . . , the release of such older opinions is still important to facilitate public understanding of the development of the law under FISA. The government should create and release declassified versions of older opinions in novel or significant cases to the greatest extent possible consistent with protection of national security. This should cover programs that have been discontinued, where the legal interpretations justifying such programs have ongoing relevance.

  Recommendation 8: The Attorney General should regularly and publicly report information regarding the operation of the Special Advocate program recommended by the Board. This should include statistics on the frequency and nature of Special Advocate participation in FISC and FISCR proceedings.

  These reports should include statistics showing the number of cases in which a Special Advocate participated, as well as the number of cases identified by the government as raising a novel or significant issue, but in which the judge declined to invite Special Advocate participation. The reports should also indicate the extent to which FISC decisions have been subject to review in the FISCR and the frequency with which Special Advocate requests for FISCR review have been granted.

  Recommendation 9: The government should work with Internet service providers and other companies that regularly receive FISA production orders to develop rules permitting the companies to voluntarily disclose certain statistical information. In addition, the government should publicly disclose more detailed statistics to provide a more complete picture of government surveillance operations.

  The Board urges the government to pursue discussions with communications service providers to determine the maximum amount of information that companies could voluntarily publish to show the extent of government surveillance reques
ts they receive per year in a way that is consistent with protection of national security. In addition, the government should itself release annual reports showing in more detail the nature and scope of FISA surveillance for each year.

  Recommendation 10: The Attorney General should fully inform the PCLOB of the government’s activities under FISA and provide the PCLOB with copies of the detailed reports submitted under FISA to the specified committees of Congress. This should include providing the PCLOB with copies of the FISC decisions required to be produced [to authorized congressional committees] under Section 601(a)(5) [of FISA].

  Recommendation 11: The Board urges the government to begin developing principles and criteria for transparency.

  The Board urges the Administration to commence the process of articulating principles and criteria for deciding what must be kept secret and what can be released as to existing and future programs that affect the American public.

  Recommendation 12: The scope of surveillance authorities affecting Americans should be public.

  In particular, the Administration should develop principles and criteria for the public articulation of the legal authorities under which it conducts surveillance affecting Americans. If the text of the statute itself is not sufficient to inform the public of the scope of asserted government authority, then the key elements of the legal opinion or other documents describing the government’s legal analysis should be made public so there can be a free and open debate regarding the law’s scope. This includes both original enactments such as 215’s revisions and subsequent reauthorizations. While sensitive operational details regarding the conduct of government surveillance programs should remain classified, and while legal interpretations of the application of a statute in a particular case may also be secret so long as the use of that technique in a particular case is secret, the government’s interpretations of statutes that provide the basis for ongoing surveillance programs affecting Americans can and should be made public.