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Privacy and Civil Liberties Board Chair Discusses Reform

By Megan Gates

David Medine’s leadership of the Privacy and Civil Liberties Oversight Board began with a trial by fire, he told the American Bar Association Standing Committee on Law and National Security at a breakfast meeting Wednesday morning. Medine had been serving as chairman of the board for just four days when, on June 5, 2013, former contractor Edward Snowden’s leaks on classified government programs were published by international media outlets.

In the wake of a media storm, the board was immediately forced to react and asked for briefings on the National Security Agency’s (NSA) Section 702 and Section 215 programs on June 6, despite not having a working email system at the time and having barely set up an office. “That was my first week on the job,” Medine said. “The second week, we got the briefing, and the third week, we met with the President and his entire board in the Situation Room to discuss these issues, so it was an extremely exciting start to work.”

After those initial meetings, the board was granted a number of briefings, given access to classified Foreign Intelligence Surveillance Court (FISC) opinions, and access to any agency records it requested throughout its research process. It ultimately created a 235-page report that was released earlier this year outlining the history of the Section 215 program, how it’s used, and the board’s recommendations on how the program should be curtailed to protect civil liberties.

Ironically, President Barack Obama made a speech about changes to the NSA program one week before the board released its report to the public, and Medine said there has been lots of speculation about the timing. However, he maintains that the board was on an intense schedule and shared its recommendations with the President before they were made public so Obama could consider them for his speech and policy recommendations.

While the President disagreed with the board’s finding that the Section 215 is inconsistent with federal statutes, he did adopt some of its recommendations, including creating limitations to the collection of telephone records. These limitations range from reducing record retention from five years to three, reducing the number of hops between collected records from three to two, and changes in how the intelligence community must request permission to access those records.

Another aspect that Medine said he felt was crucial to the protection of civil liberties is reform to the FISC. In its recommendations, the board unanimously recommended that the FISC have a special advocate, or a panel of private lawyers who have security clearances—or can gain access to them for court purposes—who could appear in significant cases before the court. Those cases would include novel, legal, or technological issues before the FISC and allow private lawyers to raise concerns.

“Judges like to hear both sides and to resolve issues, and we think when an important case is before the FISC, there should be an advocate,” Medine said. However, a special advocate would not need to be present at each court proceeding for routine matters and judges would be allowed to choose when an advocate could be present on a case-by-case basis. Additionally, the board also recommended that an appeals process for the FISC be created to bring cases to the FISC of Appeal, and, potentially to the U.S. Supreme Court for review as well.

Along with an appellate process, the board also suggested that all FISC opinions be made public. Medine said that by having this expectation up-front, judges could begin writing opinions with the view that they would be made public so parts of the decisions that needed to be classified could then be redacted. “Meeting with the former judges of the FISC, we asked them, ‘Is it practicable to write your opinions in a way with a view that at least part of the opinion would become public?’ They said they already thought so,” Medine explained.

The Obama administration is currently working to put some of these recommendations into motion, but Medine expressed concerns about the federal government collecting vast amounts of information on its citizens. Medine said he is most concerned about the “chilling effect on freedom of speech and association” that the NSA programs have had, possibly making people feel uncomfortable about speaking to journalists, calling lawyers, and engaging in activist groups.

“There’s also the potential for misuse,” Medine explained. “Again, we have a government now that we’re comfortable with…but if you look back in prior decades, we had a government that was less friendly to people and less tolerant in a sense,” he said, adding that many Americans have forgotten the Watergate abuses, surveillance of anti-war protestors, and that Martin Luther King, Jr., was once under surveillance for his actions. “I think those of us who lived through that era, our concern is about creating a database that could be abused in the future.”

As most of the board’s time over the past seven months has been spent examining the 215 and 702 programs, it’s had very little time to devote to other privacy and civil liberties matters. However, Medine said that the board is working to help federal agencies update their guidelines to improve privacy and civil liberties protections across the federal government and is also looking into training practices. Other topics that Medine and board members have discussed looking into in the future include drone policies for targeting Americans overseas, information sharing, and counterterrorism efforts.

The board is currently examining the Section 702 program and hopes to have a final report issued later this spring or early this summer that will be similar in scope to the 215 report.
 

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