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U.S. Privacy Board Says NSA Internet Spying Is Constitutional

A bipartisan privacy board that was appointed by President Obama following the disclosures made by former NSA contractor Edward Snowden has released a report (PDF) that says the security agency's Internet spying is legal and constitutional.

The report focuses on only one part of the NSA programs. It doesn't touch on the bulk collection of phone metadata, because a previous report concluded that it lacked "a viable legal foundation." Instead, this report focuses on the bulk collection of Internet data. The big difference is that the telephone metadata program targets Americans, whereas this program targets foreigners but casts such a wide net that domestic communications are often collected.

That's the most controversial part of this program. If you flip through the report, you'll also read a lot about collection of data labeled "about." This happens when the NSA collects emails from an American, for example, that contain the email address of a targeted foreigner in the body of the text, but that foreigner isn't the recipient or the sender of that communication.

The report is long and comprehensive, but here are the four paragraphs you need to read (we've added links that lead to further explanations):

"The Board concludes that PRISM collection is clearly authorized by the [Section 702] statute and that, with respect to the 'about' collection, which occurs in the upstream component of the program, the statute can permissibly be interpreted as allowing such collection as it is currently implemented.

"The Board also concludes that the core of the Section 702 program — acquiring the communications of specifically targeted foreign persons who are located outside the United States, upon a belief that those persons are likely to communicate foreign intelligence, using specific communications identifiers, subject to FISA court–approved targeting rules and multiple layers of oversight — fits within the 'totality of the circumstances' standard for reasonableness under the Fourth Amendment, as that standard has been defined by the courts to date.

"Outside of this fundamental core, certain aspects of the Section 702 program push the program close to the line of constitutional reasonableness. Such aspects include the unknown and potentially large scope of the incidental collection of U.S. persons' communications, the use of 'about' collection to acquire Internet communications that are neither to nor from the target of surveillance, and the use of queries to search for the communications of specific U.S. persons within the information that has been collected.

"With these concerns in mind, this Report offers a set of policy proposals designed to push the program more comfortably into the sphere of reasonableness, ensuring that the program remains tied to its constitutionally legitimate core."

The report also acknowledges that privacy is a universal "human right," but it sidesteps just how the mass collection of the communication of foreigners interacts with this belief.

Instead, it says that Obama has asked the panel to examine the "extent to which non-U.S. persons should be afforded the same protections as U.S. persons under U.S. surveillance laws."

It concludes: "Because PPD-28 invites the PCLOB to be involved in its
implementation, the Board has concluded that it can make its most productive contribution in assessing these issues in the context of the PPD-28 review process."

In response, American Civil Liberties Union Deputy Legal Director Jameel Jaffer said the report was "weak" and "fails to fully grasp the civil liberties and human rights implications of permitting the government sweeping access to the communications of innocent people."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Eyder Peralta is NPR's East Africa correspondent based in Nairobi, Kenya.
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