Privacy board backs NSA's foreign spying

A federal privacy watchdog is largely putting its support behind a major pillar of the National Security Agency’s foreign snooping.

A draft version of a new Privacy and Civil Liberties Oversight Board (PCLOB) report released late Tuesday said that NSA programs targeting foreigners are effective, legal and show “no trace” of “illegitimate activity,” though some changes should be made to better protect Americans’ privacy.

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The conclusion stands in stark contrast to a previous blistering report from the PCLOB, which ruled the NSA’s bulk collection of Americans’ phone records illegal earlier this year.

Instead, the foreign operations permitted under Section 702 of the FISA Amendments Act have “proven valuable in the government’s efforts to combat terrorism as well as in other areas of foreign intelligence,” the board said.

“The basic structure of the Section 702 program appropriately focuses on targeting non-U.S. persons reasonably believed to be located abroad,” it added. “Yet communications of, or concerning, U.S. persons can be collected under Section 702, and certain features of the program implicate privacy concerns.”

Americans are given special protections under the law, and many privacy advocates have worried that the 702 programs targeting foreigners also scoop up information about people in the U.S.

This week, top spy officials revealed that the NSA had used American “selectors” to search for content 198 times this year and to search for metadata about 9,500 times. 

The NSA collects information in two main ways under the 702 authority: the PRISM program, which the NSA uses to grab data from major Web companies like Facebook and Google, and “upstream” collection, which taps into “backbone” telecommunications networks such as undersea fiber cables. 

The PRISM program is “clearly authorized” by the law, the PCLOB report found. It added that the legal authority also “can permissibly be interpreted” to authorize the “upstream” collection.

The lack of vigorous criticism for the NSA was baffling to Elizabeth Goitein, the co-director of the Brennan Center for Justice’s liberty and national security program.

“I’m really surprised,” she said. “The recommendations are surprisingly anemic when you compare them to the more robust approach that the board took when it reviewed the bulk collection.”

For instance, the report declares that the government “is presently unable to assess” how many Americans’ data is “incidentally” collected under the program.

Additionally, only two of the board’s five members wanted to limit the NSA from searching for Americans under the program without a prior court order, which Goitein said was still a lax standard. That stands in contrast to the House, which backed an aggresive provision to require warrants before the “backdoor” searches last month. 

The PCLOB report "does throw a little bit of cold water" on those legislative attempts to reform the law, Goitein said.

Still, the board recommended 10 steps to increase transparency and protect civil liberties.

Among those, PCLOB suggested that spy agencies update their procedures to clarify when and how Americans can be used in searchers for foreigners, try to limit collecting messages “about” a target and disclose more details about the operations.

The board is scheduled to vote to approve the report on Wednesday morning.