NSA FISA Surveillance: Member Of NSA Review Panel May Think Phone Records Program Is Illegal

The Obama administration is already receiving criticism over the “independent” panel that will review the intelligence community’s technological capabilities and privacy safeguards. ABC News reported Wednesday on four members of the panel, and privacy advocates were not pleased.

So far, the panel is not shaping up to be what President Obama seemingly promised when he said it would be made up of “outside experts.” But at least one member of the panel appears to think the bulk phone collection is illegal.

The panel is one of four steps President Obama promised to take two weeks ago to increase American confidence in the government’s surveillance programs, since leaks by former intelligence contractor Edward Snowden revealed some of the National Security Agency’s surveillance activities this summer. “We’re forming a high-level group of outside experts to review our entire intelligence and communications technologies,” Obama said at a news conference on August 9, promising an “independent group.”

The four members reported by ABC are more insider than outsider. All four are former White House officials: former CIA deputy director Michael Morell, legal scholar Cass Sunstein, national security expert Richard Clarke, and Peter Swire, a former Obama economic adviser.

But at least one member of the group opposes the bulk phone records program authorized under section 215 of the USA Patriot Act. Swire, who served as chief counsel on privacy matters in the Clinton administration, recently signed on to an amicus brief to the U.S. Supreme Court arguing that the program contradicts the "purpose and design" of the Foreign Intelligence Surveillance Act. The brief, in support of a privacy group’s petition to the court to halt the phone data program, provides a historical perspective on the history of the government’s abuses of its surveillance powers since the 1970s. It concludes that not only is the program illegal under section 215, but that the oversight of the program falls short. The Foreign Intelligence Surveillance Court, which oversees the NSA’s surveillance programs, “is not performing its most basic function: protecting U.S. persons from undue incursions into their privacy,” the brief concludes.

It’s unclear if Obama will appoint additional members to the board, but technology experts and privacy advocates hope he will. “The background of this panel indicates that it, too, is unlikely to be meaningful or effective,” Amie Stepanovich, an attorney at the Electronic Privacy Information Center who works on surveillance issues, told the Washington Post Thursday.

Sunstein, who until recently ran Obama’s Office of Information and Regulatory Affairs, has drawn the most ire of the four panel members from civil liberties groups for a 2008 paper in which he suggested the government combat conspiracy theories using “cognitive infiltration of extremist groups" by having government agents “enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action."

Given the technology focus of the panel and the knowledge needed to understand the NSA’s programs, others are perturbed by the lack of technological expertise on the panel thus far. “WH appoints @peterpswire, @CassSunstein, and R. Clark to review NSA programs. Hopefully some technologists too?” Ashkan Soltani, a consultant on privacy and security issues, tweeted Friday.