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FBI/Apple privacy fight left out a major player: the data carriers

Taylor Armerding | June 30, 2016
In the conflict between government surveillance and individual privacy, it is not just the data on devices that is at stake. It is the data that travels to and from the devices. That is where the communications carriers come in

Still, the language of Section 702 allows surveillance of those who are "reasonably believed" to be non-U.S. persons located outside the U.S. That, in any kind of legal setting, would seem to be leaving a good deal of wiggle room.

Tien says the problem goes well beyond that. "We have argued that 702, on its face, is unconstitutional because no court actually decides anything particular about the search/seizure of data - it only approves procedures for targeting, minimization, etc.," he said. "Other executive branch officials - I think the director of national intelligence or the attorney general - issue the actual directives to providers. Section 702 is by no means a gold standard."

And, he added, any meaningful oversight of government surveillance under Section 702 is impossible because the government, citing national security, "makes it nearly impossible to understand how these programs work or how they affect the public. If there were abuses, how would you or I know about them? We don't even really know what the words of the statutes mean."

Inglis contends that the more people learn about the constraints on U.S. intelligence collection, the more reassured they are. He cited a post from two years ago by Geoffrey Stone, a law professor at the University of Chicago, who served on the President's Review Group in late 2013, which made recommendations to the president about NSA surveillance and related issues.

Stone said he came to the task with "great skepticism" about the NSA, but came away much more impressed than he had expected with an agency that had not only thwarted numerous terrorist plots but also, "operates with a high degree of integrity and a deep commitment to the rule of law."

This, he said, did not mean he thinks the public should trust the NSA. "It should never, ever be trusted," he wrote, since, "distrust is essential to effective democratic governance."

But he said he did believe that, "the NSA deserves the respect and appreciation of the American people."

While the debate will likely continue well into next year, David Medine, chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), said at Tuesday's hearing that if the Section 702 program is to continue, "it should be more protective of privacy and civil liberties."

He proposed three amendments:

  • Require intelligence agencies to get FISA Court approval before querying information connected with a U.S. person's identifier.
  • Restrict the collection of "upstream" data even after it has been filtered, to reduce the amount of "incidental" collection of information about U.S. citizens.
  • Require the NSA and other intelligence agencies to report the number of records of U.S. persons it collects annually to the Director of National Intelligence, Congress and other oversight agencies.


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