On Wednesday, the White House released the report and recommendations of the Review Group on Intelligence and Communications Technologies, the board appointed by President Obama to review National Security Agency’s (NSA) surveillance practices. The 300+ page report includes 46 recommendations to reform government surveillance of online and telephone communications for the purposes of national security and suggests new limits on the NSA programs. The report comes after D.C. District Court judge Richard Leon ruled on Monday that the NSA’s program to collect bulk telephone metadata “almost certainly” violates the Fourth Amendment. Here are the highlights:
- Bulk Collection under Section 215: The review group recommends that the NSA’s bulk collection of phone records under Section 215 of the USA PATRIOT Act be “terminated as soon as reasonably practicable” stating, “as general rule…the government should not be permitted to collect and store all mass, undigested, non-public personal information about individuals to enable future queries and data-mining for foreign intelligence purposes.” The group recommends instead that the NSA query records as they are maintained by phone companies or a private third party. Data could only be queried if a Foreign Intelligence Surveillance Act (FISA) Court judge has determined that there are reasonable grounds to believe that the information sought is relevant to an authorized terrorism or counter-intelligence operation, and that the order is reasonable in focus, scope and breadth. The report does not recommend that the phone companies be statutorily required to retain call record data.
- National Security Letters: The review group report recommends tightening federal law enforcement’s use of National Security Letters (NSLs) by requiring authorities to obtain a prior “judicial finding” showing “reasonable grounds” that information sought is relevant to terrorism or other intelligence activities. This recommendation is both surprising and promising in its breadth as it would essentially do away with NSLs in favor of court orders under the same standard recommended by the Review group for Section 215 orders.
- Surveillance under Section 702: The review group recommends closing the “backdoor search loophole” by prohibiting the government from searching information acquired pursuant to Section 702 of the Foreign Intelligence Surveillance Act for information about a particular U.S. person without a court order. The report also recommends immediate deletion of any information about U.S. persons acquired under Section 702 that does relate to foreign intelligence, and recommends prohibiting use of any information about U.S. persons acquired under Section 702 from being used in any criminal proceedings.
The report also recommends greater public disclosure of the use of Section 215, Section 702 and NSL authorities; the creation of a Public Interest Advocate to represent privacy and civil liberties interests before the FISA Court; and reform of FISA Court procedures, including release of FISC opinions where practicable.
We were pleased to see the group advocate for such significant reform of surveillance practices and we urge both Congress and the White House to heed their call. Many of the recommendations of the review group align with provisions included in Senator Patrick Leahy (D-Vt.) and Congressman Sensenbrenner’s (R-Wisc.) USA FREEDOM Act (new advocacy one-pager from Government Relations Committee chair Susan Nevelow Mart and Marlene Harmon is available here), which AALL strong supports. Senator Leahy, chair of the Senate Judiciary Committee, said in a statement on Wednesday that he has invited the members of the review group to testify before the Senate Judiciary Committee in January. We will keep you updated as more information develops.