The Privacy and Civil Liberties Oversight Board (“PCLOB”) released a report concerning two government intelligence surveillance programs. The PCLOB is an independent agency within the executive branch tasked with ensuring that the federal government’s efforts to thwart terrorism are balanced with privacy rights and civil liberties. In 2014, the PCLOB issued reports on the government’s Section 215 and 702 surveillance programs. This latest report is an assessment of the degree to which the Administration has implemented the recommendations made by the PCLOB in the two prior reports.
Overall, the PCLOB found that the Administration, along with the Intelligence Community, have been responsive to the recommendations. According to the report “virtually all” of the recommendations made in the Section 702 report has been accepted and the Administration has begun implementing “many” of them. However, “many” of the recommendations in the Section 215 report that were directed at the Administration have not yet been fully satisfied.
A major issue of contention concerns the NSA’s bulk telephone records program under Section 215. In its Section 215 report, the PCLOB recommended that the Administration halt the program, raising First and Fourth Amendment concerns. Additionally, it found that the program has limited value, especially compared to the threat posed to privacy and civil liberties. There was a lack of evidence showing that telephone records gathered through this program made a “concrete difference” in the outcome of counterterrorism investigations. Further, it suggested that the government would still have the ability to gather telephone records without this program just by simply utilizing existing legal authorities to compel communications providers to provide the information.
Instead of ending the bulk telephone records program, the Administration opted to support new legislation that would replace Section 215 and provide a new system that will allow the government to access telephone records. In 2014, the USA FREEDOM Act was introduced in the Senate, and the Administrated showed its support for it. This legislation would end the bulk telephone records program, and is consistent with the PCLOB’s recommendations. However, this legislation failed to advance in the Senate in November 2014, but it is expected to be reintroduced with the continued support of the Administration.
In the meantime, the Administration has continued the program while making modifications to it. According to the report, the Administration has accepted the recommendation in principle, but has not ended it, something it has the power to do unilaterally, without congressional involvement. Although the PCLOB recognized that immediately ending the program would be “disruptive” to current government processes, it suggested that the government “wind down” the program over a “short interim period.” It seems that the Administration has approached the recommendation of ending the program as being contingent on the passage of new legislation to replace it. The PCLOB did not recommend that this program end only if a replacement legislation was passed.
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