A citizen’s privacy board will consider whether opponents of U.S. spying programs should be represented before a secret court overseeing government surveillance -- as recommended by a former judge on that court.
Altering how the Foreign Intelligence Surveillance Court operates is one of several suggestions that deserve “serious” consideration, David Medine, chairman of the Privacy and Civil Liberties Oversight Board, said in an interview.
The five-member board held its first public meeting yesterday in Washington to hear from former government officials and legal and civil-rights experts on U.S. programs exposed by ex-National Security Agency contractor Edward Snowden to spy on Americans’ phone records and e-mails.
The secret court is “one-sided” because it only hears from the government, James Robertson, a former federal judge based in Washington who served on the court from 2002 to 2005, told the panel yesterday. He told the Associated Press that he left the court over concerns about the surveillance.
“We had a range of recommendations on all sides that have given us a lot of things to think about,” Medine said after the seven-hour meeting. “We are going to continue to review the FISA court opinions and we’re going to continue to get briefings from the government so that we can better understand the details of these programs.”
The board is charged under federal law with ensuring U.S. spying programs have privacy controls. Medine, a former partner at the WilmerHale law firm in Washington, said the panel plans to release a report with recommendations on the spying programs.
“I submit this process needs an adversary,” Robertson told the privacy board. “There’s nobody there to object.”
He said opponents could have some kind of representation similar to lawyers who represent detainees at the U.S. military detention base in Guantanamo Bay, Cuba.
James Baker, who served in the Justice Department and represented the government before the FISA court from 1998 to 2007, said having an adversarial check could slow down surveillance approvals.
“If you now interject yet another person in the system you have to think about what is that going to do to the speed and agility of that program,” Baker told the board. “This has been talked about for years and it’s not been adopted.”
The government has the authority under existing law to initiate emergency surveillance and get approval from the court later.
Snowden exposed a program under which the NSA collects telephone records on millions of Americans from Verizon Communications Inc. and stores it in a database that can be searched.
Patricia Wald, a board member and former federal judge appointed by Democratic President Jimmy Carter, asked whether telecommunications carriers could be required to retain and store the data, rather than the NSA.
Steven Bradbury, who served as head of the Justice Department’s office of legal counsel under Republican President George W. Bush, said imposing the requirement on the companies would be costly and less efficient.
Multiple databases would have to be created by different companies, which would probably be paid for by the government, he told the board.
Telecommunications and Internet companies that are required to provide the government with data on U.S. citizens want to reveal the extent of requests they receive from law enforcement agencies, said Ashkan Soltani, an independent technology researcher.
“They’re dying to reveal that it is in fact not as bad as it seems or that the NSA is overreaching,” he told the board.
Google Inc. (GOOG:US), Apple Inc. (AAPL:US) and Facebook Inc. (FB:US), for example, have asked the court for permission to disclose information about government requests for user data. No companies were represented at yesterday’s session.
Medine said the board hasn’t requested a meeting with any of the companies. “At this point we haven’t reached out to them,” he said. “If they want to come see us we certainly can.”
Intelligence agencies aren’t required to get individual warrants from the FISA court to conduct surveillance that involves the incidental collection of communications of Americans under the two programs exposed by Snowden. However, individual warrants are required when an American is the target of surveillance.
Regardless, the bulk collection of telephone records is illegal, said Gregory Nojeim, a senior lawyer for the Center for Democracy and Technology in Washington
“It’s over broad,” he told the board. “It can’t be the case that everyone’s telephone records are relevant to investigations.”
The collection was authorized by Congress under a 2008 law.
Elizabeth Goitein, a lawyer with the New York City-based Brennan Center for Justice, said the board should recommend that individual warrants be required for the collection of any communications of Americans, the way it was done before the 2008 law.
Baker, the former Justice Department lawyer, said the government was able to make the FISA process work prior to 2008.
“The ability for the government to obtain information and create massive databases raises serious constitutional issues,” Kate Martin, director of the nonprofit Center for National Security Studies, a Washington-based government watchdog, told the board.
Bradbury didn’t rule out the possibility of allowing opponents of surveillance to have a representative before the court. He said perhaps a permanent officer of the court or the executive branch could play the role.
Two other recommendations included requiring the court to declassify portions of its work and establishing tougher legal standards the government must meet before it is allowed to collect information involving the communications of U.S. citizens.
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