What to Expect in This Government Report on Government Spying

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Here are the questions critics hope Obama's privacy watchdogs will answer in this week's long-awaited report on Section 702 of the Foreign Intelligence Surveillance Act. By Brendan Sasso

Privacy advocates are hoping to get a boost Wednesday when a government panel is slated to release a report on one of the most controversial federal spying powers.

The Privacy and Civil Liberties Oversight Board, an independent watchdog, is set to unveil its long-awaited report on spying programs under Section 702 of the Foreign Intelligence Surveillance Act. The provision allows the National Security Agency to spy on communications of foreigners, but the agency in some cases has also used that authority to target Americans.

In the wake of the leaks by Edward Snowden, much of the focus has been on Section 215 of the USA Patriot Act, which the NSA has been using to collect records on millions of U.S. phone calls.

Section 702 hasn’t received the same level of attention, but the NSA has been using that authority for several controversial spying programs. And unlike Section 215, which only allows the NSA to collect “metadata” such as phone numbers and call times, Section 702 allows spies to read the contents of emails and other communications.

With the Obama administration and nearly all lawmakers now on board with tightening Section 215 to ban bulk data collection, Section 702 has emerged as a critical remaining battleground in the fight over federal spying.

Wednesday’s report could also be an important moment for the civil-liberties board to step into the spotlight. The panel, which was created after the Sept. 11, 2001, attacks to defend privacy rights, released a report on Section 215 earlier this year, but it was largely overshadowed by a separate report from President Obama’s own review group on surveillance issues.

Obama didn’t even wait for the PCLOB report to announce how he wanted to reform the program. Here are the major questions ahead of the panel’s latest report:

1. Will the board want to end “backdoor” spying?

Section 702 is supposed to allow spying only on foreigners located outside the United States. But the government has acknowledged that it sometimes sifts through the vast batches of foreign data it collects specifically looking for communications of Americans.

Privacy advocates have condemned the practice as an illegal “backdoor” method for domestic surveillance. The House voted 293-123 recently in favor of an amendment to a defense appropriations bill that would require the NSA to get a warrant before accessing Americans’ communications.

If PCLOB also comes out against the “backdoor” 702 searches, it could put further pressure on the Senate to ban the practice.

Kevin Bankston, the policy director for the Open Technology Institute, said he expects that policymakers will be “paying very close attention” to what the report says on backdoor searches.

At this point, it’s clear that the U.S. government is doing a substantial amount of surveillance related to U.S. persons using this Section 702 authority that’s supposed to be directed outside of the country,” he said. “And that backdoor needs to be shut.”

2. Will the board push to limit dragnet searches?

Under Section 702, the NSA taps into the Internet backbone to gather international communications. According to leaks, the NSA looks not only for messages “to” and “from” certain targets but also messages “about” those targets. But knowing what communications are “about” a target means the NSA has to scan through nearly everything.

The House’s version of the NSA reform bill, the USA Freedom Act, would explicitly allow for the collection of information “about” targets. Privacy advocates are pressing the Senate to strip the language out, and are hoping PCLOB will join their fight.

3. Will the report reveal new details about NSA spying?

Aside from the board’s recommendations for reforms, the report will also be important just for its description of spying under Section 702. The report could help the public understand the programs and could reveal new details about NSA surveillance.

I think it’ll impact the debate in Congress by providing the public with a very good overview of how Section 702 works,” said Mark Jaycox, a legislative for the Electronic Frontier Foundation. “Currently, there are still many questions about how exactly 702 is used.”

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