- The Washington Times - Wednesday, July 2, 2014

At least some of the government’s snooping programs get high marks from a federal privacy watchdog, which approved a report Wednesday saying foreign intelligence collection is generally done in accordance with the Constitution and has been remarkably successful in sniffing out terrorist plots.

Programs operated under Section 702 of the Foreign Intelligence Surveillance Act have helped the government learn terrorist networks’ priorities and tactics, and to identify previously unknown terrorists and deny them entry into the U.S., the Privacy and Civil Liberties Oversight Board said in its report.

The privacy board said it reviewed about 20 cases where Section 702 data was used to support an existing counterterrorism investigation, and about 30 cases where the Section 702 data was “the initial catalyst” that led to identifying unknown terrorists or uncovering secret plots.


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All told, Section 702 data has led to “well over one hundred arrests on terrorism-related offenses,” and headed off about 15 plots in the U.S. and 40 in other countries, the board concluded.

Section 702 data was helpful in picking up the trail of the plot to bomb the New York City subway system, and also helped identify Khalid Ouazzani, who was previously unknown to intelligence agencies but who was eventually convicted of providing material support to al Qaeda, the board said.

The new report contrasts with a previous one the board issued on the NSA’s bulk collection of phone data, a program which the agency justified under Section 215 of the Patriot Act, rather than under FISA. That program lacked constitutional footing and did infringe on Americans’ rights, the board said.


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Congress is trying to rewrite the Patriot Act to clarify that bulk collection of data on Americans should be illegal.

Director of National Intelligence James Clapper said the new Section 702 report was a vindication for the programs, which have come under fire from civil rights advocates who say they can end up grabbing information on Americans in “warrantless backdoor searches.”

The government operates two programs under Section 702. One, PRISM, collects Internet communications from a specific overseas non-American target, while the other, known as “upstream” collection, grabs Internet or telephone communications straight off the backbone systems.

The privacy board said the Section 702 programs appear to conform with the intent of Congress and that the “core” of the programs meet constitutional muster — though they said more steps should be taken to ensure Americans whose data gets swept up have their rights protected.

Board members said they have seen no evidence that the programs have been abused for illegitimate activity, though they said the rules “potentially allow a great deal of private information about U.S. persons to be acquired by the government.”

The government cannot say how many Americans’ communications are swept up in its searches.

Privacy advocates said the board should have done more to raise a warning about that.

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, said it doesn’t matter if an American is talking with a neighbor or a terrorist, the government must get a warrant to collect their phone calls and emails.

“The board, however, endorsed a ‘foreign intelligence exception’ to the Fourth Amendment’s warrant requirement that is far broader than what any regular federal court has ever recognized,” she said. “The board’s recommendations would leave in place the government’s ability to spy on its citizens — along with their friends, family members, and business partners overseas — without any suspicion of wrongdoing.”