By Sam Pfeifle
Publications Director

At the Privacy and Civil Liberties Oversight Board’s (PCLOB) first public meeting since its reemergence under new Chairman David Medine, the focus was very precise: What direct and concrete improvements could be made to improve “Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of Foreign Intelligence Surveillance Act.”

Providing feedback were three focused panels of former government officials and privacy and civil liberties experts and advocates, ranging from former Department of Justice National Security Division and White House Homeland Security Advisor Kenneth Wainstein to EPIC President and Executive Director Marc Rotenberg. Notably, however, there were no representatives from private industry, many of whom are in direct contact with these surveillance operations.

It is notable because much of the discussion centered around what role those firms should play in these surveillance operations, from the telecoms providing phone records and location data to Internet firms providing all manner of metadata about the use of their services.

Specifically, there was argument over the use of programmatic surveillance—the broad collection of data that can then be analyzed—and targeted surveillance, where a specific person or people could be used as the start of broad data analysis. Also, there was discussion of where the data should live: with the federal government, which constantly collects data from private industry and stores it, or with private industry, which could be made to keep important data for, say, five years under a potentially new data retention law.

That latter proposal drew heavy criticism from privacy advocates like Sharon Bradford Franklin, senior counsel at the Constitution Project. Not only does a data retention law open up possibilities for the misuse of data by the government, she argued, it increases the likelihood of misuse by private industry.

“It makes the private sector keep stuff around for longer than they would otherwise,” she said, “and then they’ll find other uses for it…If the data isn’t there, then there’s no danger…Companies should retain their data that they need for business purposes and then get rid of the data when it’s no longer needed for those business purposes.”

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, agreed.

“Do you really want to require us to generate and keep records about ourselves for the government’s convenience?” she asked. “It’s akin to that.”

The other area where private industry might be most affected is in calls for transparency. Many panelists suggested that certain operations of the FISA Court could be made publicly available and that certain requests to private industry could not only be made public, but could even be challenged by private industry.

Retired District Court and FISA Court Judge James Robertson was the first to suggest an adversarial process for FISA requests in the morning session, and his suggestion was taken up a number of times during the course of the day, with Rotenberg perhaps summing up the suggestion most succinctly: “The judicial process works best as an adversarial proceeding, so having a tech expert (advising the court) might be helpful. But I think you need to hear both sides of the claim. Otherwise, the judge is just an agency manager, and that doesn’t seem an appropriate role.”

Whether that challenge to the claim would come from an ombudsman of some sort, counsel representing the private firm being asked to supply data or some other answer was batted around, but there was pretty clear agreement from many panelists that this addition would be an improvement.

For example, researcher and consultant Ashkan Soltani, who advised The Wall Street Journal on its Pulitzer-winning privacy series, noted the NSA or another agency making the request may not have a proper understanding of how the technology involved works. Take the idea of “contact chaining” as an example. If the NSA identifies a person of interest, they can use metadata to understand that person’s social network and therefore identify other potential threats.

However, “most modern Internet systems are P-to-P apps,” said Soltani, “like Skype or Spotify. If I and a member of Al-Qaeda both like the same Britney Spears song, does that make me a person of interest? The system would probably say yes.”

At the meeting’s conclusion, Medine acknowledged the lack of private industry participation in the meeting but said the PCLOB is very much interested in industry input and encouraged public comment to the PCLOB in this area, which is open until August 1. And, he said, “If they want to come see us, they certainly can.”

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