US surveillance practices 'need urgent reform'

By agency reporter
8 Jan 2014

The report of the five-member group appointed by President Barack Obama to review US surveillance practices casts doubt on the claimed necessity for some US government surveillance programmes and underscores the need for urgent change, reports Human Rights Watch.

With their report released at the end of last year (2013), the panel joined a growing chorus of policymakers, rights organisations, and security experts calling for critical reforms to US government surveillance programmes.

The panel recommended an end to government bulk metadata collection, more robust judicial review of government surveillance requests, and increased transparency.

While the review group went farther than any other US government entity in urging greater privacy protections for foreigners abroad, its recommendations still leave the door open to continued surveillance of people with no genuine connection to terrorism or wrongdoing.

“Both the President and Congress can use the report’s recommendations in crafting new policies and laws, but it’s only a starting point for change,” said Cynthia Wong, senior Internet researcher at Human Rights Watch.

“Until President Obama takes tangible steps to protect the rights of everyone, no matter where they are, he’ll have a hard time restoring global trust in US support for Internet freedom,” she added.

One of the panel’s more striking findings was that the metadata collection programme being conducted under section 215 of the USA PATRIOT Act had not been essential to preventing any terrorist attacks. The panel concluded that information derived from that programme could have readily been obtained in a timely manner through other means. The panel found “no sufficient justification for allowing the government itself to collect and store bulk telephony metadata” and recommended terminating the programme “as soon as reasonably practicable.”

The panel recognised that the right to privacy is a basic human right, “central to human dignity,” enshrined in international treaties to which the US is party. The panel proposed limiting surveillance to what is “directed exclusively at the national security of the United States or [its] allies” and said it shouldn’t be used for illegitimate ends such as commercial gain. However, the panel ultimately endorsed an unnecessary, two-tiered approach, with much weaker safeguards against surveillance for foreigners and unclear recourse against overbroad collection of their data overseas.

The panel recommended critical changes to the use of National Security Letters (NSLs). Federal authorities have used NSLs to force companies to disclose user information, but without judicial intervention and under weak standards and strict gag orders. The review group effectively called for an end to that practice, saying NSLs should be subject to judicial authorisation.

The review group embraced transparency measures that human rights organisations and companies have asked for, including proposing legislation to require greater reporting to Congress and the public about use of intelligence gathering powers, and allowing technology companies to report on the number of orders they receive for user data.

Strengthening judicial review: The panel supported creating an institutional advocate at the Foreign Intelligence Surveillance Court to represent the public’s privacy interests.

The panel made a number of suggestions for strengthening the Privacy and Civil Liberties Oversight Board (PCLOB), an independent oversight agency. It also suggested empowering the board to receive whistleblower complaints, which would improve existing reporting mechanisms for national security whistleblowers. However, it would not adequately address the need for whistleblower reform that Human Rights Watch has previously identified.

Finally, the panel said that the US should not undermine efforts to create strong encryption standards or weaken the security of generally available software and online services by asking companies to make it technologically easier to spy on users. While the panel did not directly address media reports that the NSA had deliberately weakened encryption technology and asked companies to build in secret 'back doors' into their products, this recommendation was clearly aimed at addressing these allegations.

Human Rights Watch is one of the world’s leading independent organisations dedicated to defending and protecting human rights.

* More from Human Rights Watch: http://www.hrw.org/

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