The Privacy and Civil Liberties Oversight Board (PCLOB) has concluded its six-year investigation into Executive Order 12333, one of the most sprawling and influential authorities that enables the U.S. government’s mass surveillance programs. The result is a bland, short summary of a classified report, as well as a justified, scathing, and unprecedented unclassified statement of opposition from PCLOB member Travis LeBlanc.
Article by Matthew Guariglia and Cindy Cohn from EFF.
Let’s start with the fact that the report is still classified—the PCLOB is supposed to provide public access to its work “to the greatest extent” consistent with the law and the needs of classification. Yet the public statement here is just 26 pages describing, rather than analyzing, the program. Nothing signals to the public a lack of commitment to transparency and a frank assessment of civil liberties violations like blocking the public from even reading a report about one of the most invasive U.S. surveillance programs.
Member LeBlanc rightly points out that, at a minimum, the PCLOB should have sought to have as much of its report declassified as possible, rather than issuing what he correctly criticizes as more like a “book report” than an expert legal and technical assessment.
The PCLOB was created after a recommendation by the 9/11 Commission to address important civil liberties issues raised by intelligence community activities. While its first report about Section 215 was critical in driving Congress to scale back that program, other PCLOB reports have been less useful. EFF sharply disagreed with the Board’s findings in 2014 on surveillance under FISA Section 702, especially where it found that the Section 702 program is sound “at its core,” and provides “considerable value” in the fight against terrorism—despite going on to make ten massive recommendations for what the program must do to avoid infringing on people’s privacy.
But even by the standards of past PCLOB reports, this latest report represents a new low, especially when addressing the National Security Agency’s XKEYSCORE. XKEYSCORE is a tool that the NSA uses to sift through the vast amounts of data it obtains, including under Executive Order 1333. As the Guardian reported in 2013 based upon Edward Snowden’s revelations, XKEYSCORE gives analysts the power to watch—in real time—anything a person does on the Internet. There are real issues raised by this tool and, as LeBlanc notes, other than by the PCLOB, the XKEYSCORE program is “unlikely to be scrutinized by another independent oversight authority in the near future.”
LeBlanc writes that his opposition to the report stems from:
- The unwillingness of the investigation into Executive Order 12333 to scrutinize modern technological surveillance issues, such as algorithmic decision making, and their impact on privacy and civil liberties;
- A failure of the Board majority to investigate and evaluate not just how XKEYSCORE can query online communications that the NSA already has, but the legal authority and technological mechanisms that allow it to collect that data in the first place;
- The decision to leave out of the report any analysis of the actual effectiveness, costs, or benefits of XKEYSCORE;
- The haphazard and unthoughtful way the NSA defended its legal justification for the program’s use—and the Board’s unwillingness to probe into any possible issues of compliance;
- A vote to exclude LeBlanc and Board member Ed Felten’s additional recommendations from the report;
- The unwillingness of the Board to attempt to declassify the full report or inform the public about it, which LeBlanc labels as “inexcusable,” and,
- The unconventional process by which the Board voted to release the report.
Any one of these concerns would be significant.Taken together they are a scathing indictment of an oversight board that appears to be unable or unwilling to exercise actual oversight.
As LeBlanc notes, there is so much about XKEYSCORE and the NSA’s operations under Executive Order 12333 that require more public scrutiny and deep analysis of their legality. But it seems impossible to achieve this under the current regime of overbroad secrecy and PCLOB’s refusal to play its role in both analyzing the programs and giving the public the information it needs. LeBlanc rightly notes that the report ignores the “collection” of information and that both collection and querying “are worthy of review for separate legal analysis, training, compliance and audit processes.” As we have long argued, this analysis is important “whether the collection and querying activities are performed by humans or machines.”
He also notes that the PCLOB failed to grapple with so-called “incidental” collection—how ordinary Americans are caught up in mass surveillance even when they are not the targets. And he notes that the PCLOB failed to investigate compliance and accepted a legality analysis of XKEYSCORE by the NSA’s Office of General Counsel that appears to only have been written after the PCLOB requested it, despite the program operating for at least a decade before. What’s more, the review fails to take into consideration the Supreme Court’s more modern analysis of the Fourth Amendment. Those are just some of his concerns—all of which we share.
Nor did the PCLOB analyze the effectiveness of the program. Basic questions remain unanswered, like whether this program has ever saved any lives. Or whether, like so many other mass surveillance programs, any necessary information it gathered could not be gathered in another manner? These are all important questions that we deserve to know—and that at least one member of the PCLOB board agrees we deserve to know.
On December 4, 1981, Ronald Reagan signed Executive Order 12333, which gave renewed and robust authorities to the U.S. intelligence community to begin a regime of data collection that would eventually encompass the entire globe. Executive Order 12333 served as a damning pivot after less than a decade of reforms and mea culpas. The 1975 report of the Church Committee revealed, and attempted to end, three decades of lawless surveillance, repression, blackmail, and sabotage that the FBI, CIA, and NSA wrought onto Americans and the rest of the world. Executive Order 12333 returned the intelligence community to its original state: legally careless, technically irresponsible, and insatiable for data.
Twenty-three years after Reagan signed Executive Order 12333, PCLOB was established as a counterbalance to the intelligence community’s free reign over the years. But it’s clear that despite some early achievements, the PCLOB is not living up to its promise. That’s why cases like EFF’s Jewel v. NSA, while not about XKEYSCORE or Executive Order 13333 per se, are critically important to ensure that our constitutional and statutory rights remain protected by the courts, since independent oversight is failing. But at minimum, the PCLOB owes the public the truth about mass surveillance—and even its members are starting to see that.
New Conservative Network Seeks Crowdfunding Help
They say we have to go big or go home. We’re trying to go big and bring the patriotic truth the the nation, but we need help.
Readers may or may not realize that over the past year, we’ve been bringing more conservative news and opinion outlets under our wing. Don’t take our expansion as a sign of riches; all of the “acquisitions” have been through sweat and promises of greater things to come for all involved. As a result, we’ve been able to bring together several independent media sites under a unified vision of preventing America from succumbing to the progressive, “woke,” Neo-Marxist ideologies that are spreading like wildfire across America.
The slow and steady reopening of America is revealing there was a lot more economic hardship brought about from the Covd-19 lockdowns than most realize. While we continue to hope advertising dollars on the sites go up, it’s simply not enough to do things the right way. We are currently experiencing a gap between revenue and expenses that cannot be overcome by click-ads and MyPillow promos alone (promo code “NOQ” by the way).
To overcome our revenue gap and keep these sites running, our needs fluctuate between $3000-$7000 per month. In other words, we’re in the red and hemorrhaging.
The best way you can help us grow and continue to bring the truth to the people is by donating. We appreciate everything, whether a dollar or $10,000. Anything brings us closer to a point of stability when we can hire writers, editors, and support staff to make the America First message louder. Our Giving Fuel page makes it easy to donate one-time or monthly. Alternatively, you can donate through PayPal as well.
As the world spirals towards radical progressivism, the need for truthful journalism has never been greater. But in these times, we need as many conservative media voices as possible. Please help keep NOQ Report and the other sites in the network going.
Thank you and God Bless,
One Sick Day Proves We Need More Voices in Truthful Media
On October 19, I was sick. It crossed my mind that I had finally gotten the ‘rona, but my wife’s cream of chicken soup and a few extra hours of sleep into mid-afternoon had be back up and running after a sleepless night before.
When I finally stumbled over to my computer in the evening, I was met with a deluge of concern from readers. They asked what had happened as only one article had been posted that day. Generally, we post between 10-20 daily between all of the sites, not included curated and aggregated content. Seeing that we’d only posted my super-early morning article before taking the rest of the day off had readers assuming the worst.
We have a wonderful and talented group of writers who volunteer their time for the sites and their readers. Sharing their amazing perspectives has always been a blessing to us because we cannot afford to hire anyone at this time. But having great writers is meaningless if we don’t have great editors, or at least one additional. My wife helps me read and edit stories from time to time, but I’m a one-man show when it comes to getting the stories posted.
Whenever I highlight our desperate need for donations, I note that we do not receive money from Google ads even though most in conservative media are beholden. I often ambiguously note that the money donated will help us grow. Today, I’m highlighting a specific need. We must get an editor to help take some of the load and to expand on our mission of spreading the truth to the world. One sick day proved that.
The great news is that there is no shortage of people who CAN help. I am emailed variations of resumes every week by people who are much smarter than I am. As much as I’d love to hire some of them, we simply cannot. That takes money and as blessed as we’ve been to receive donations and collect ad money (though not from Google or Facebook), we have still fallen short.
Those who have the means, PLEASE consider donating. We have the standard Giving Fuel option and people can donate through PayPal. We are also diving into what we believe is extremely disruptive technology at LetsGo.finance, the world’s first major donation portal for crypto. I’ll be talking a lot more about them in the near future. Those who prefer Bitcoin can send to my address here: 3A1ELVhGgrwrypwTJhPwnaTVGmuqyQrMB8
We can get the voices out there and we’re willing to shine a spotlight on new talent. We just need the resources to make it happen. If you can help, we would be extremely grateful.
Thank you and God bless!