Today I filed comments with the Privacy and Civil Liberties Oversight Board (PCLOB) in connection with its hearing on section 702 of the FISA Amendments Act. That law is the legal basis for the PRISM surveillance program and involves warrantless collection of communications contents via targeting non-U.S. individuals or entities reasonably believed to be located abroad. I've written previously about questions the PCLOB should investigate with regards to section 702. But these new comments reflect on somewhat different issues based on NSA officials' testimony at the recent May 19th hearing. For details, the full comments are attached. In sum, here are the questions I suggest that the PCLOB investigate:
1. Where NSA’s internal practices respect privacy or other civil liberties concerns, can these practices be enshrined in public, enforceable statutes rather than codified as secret internal regulation or policy?
2. What categories of 702 certifications have the Attorney General and the Director of National Intelligence obtained, and what are the limitations on the type or breadth of such certifications?
3. How many of the section 702 collected communications are of or concerning U.S. persons?
4. What types of selectors does the NSA use to collect information under approved 702 certifications?
5. Do intelligence agencies treat address books, buddy lists, stored documents, system backups and/or other electronic transmissions between an individual user’s personal computer and the servers (i.e. where there is no human being on the received end of the transmission at the ISP) as “communications” for the purposes of minimization?
6. For what purpose or purposes may the intelligence agencies search 702 collected data for US person selectors?
7. May intelligence agencies search all 702 collected data for US person selectors?
8. What is the national security value of authorizing warrantless surveillance of people who are not agents of foreign powers?
9. What is the national security value of authorizing warrantless surveillance of people who are not agents of foreign powers?