Why Is Congress Undermining President's Surveillance Oversight Board?

from the not-good dept

Thu, May 19th 2016 8:38am — Mike Masnick

The Privacy and Civil Liberties Oversight Board (PCLOB) is supposed to be an independent body that makes sure that the intelligence community is not abusing its surveillance powers. It was created to go along with the PATRIOT Act, as a sort of counterbalance, except that it initially had basically no power. In 2007, Congress gave it more power and independence and... both the Bush and Obama administrations responded by... not appointing anyone to the PCLOB. Seriously. The Board sat entirely dormant for five whole years before President Obama finally appointed people in late 2012. Thankfully, that was just in time for the Snowden revelations less than a year later.

The PCLOB then proceeded to write a truly scathing report about the NSA's metadata collection under Section 215 of the PATRIOT Act, calling it both illegal and unconstitutional. While the PCLOB was less concerned about the NSA's Section 702 program (which includes both PRISM and "upstream" collection from backbone providers) the group has been working for nearly two years on an investigation into Executive Order 12333 -- which is the main program under which the NSA spies on people.

However, as Marcy Wheeler points out, Congress seems to be bending over backwards to try to undermine and undercut the PCLOB. That's especially unfortunate, because at one point there was even a bipartisan effort to give the PCLOB more power, but things seem to have gone the other way instead:

As I reported, during the passage of Intelligence Authorization last year (which ultimately got put through on the Omnibus bill, making it impossible for people to vote against), Congress implemented Intelligence Community wishes by undercutting PCLOB authority in two ways: prohibiting PCLOB from reviewing covert activities, and stripping an oversight role for PCLOB that had been passed in all versions of CISA.

In the 2017 Intelligence Authorization HPSCI passed on April 29, it continued more of the same.

The new changes are subtle, but problematic. The first is that the PCLOB is limited to spending money only on issues for which Congress has directly approved the spending. In other words, if Congress doesn't want the PCLOB investigating a certain area, no problem, it can just make it clear that funding does not cover that area. That kind of voids the PCLOB's supposedly "independent" nature. The second issue is that it requires that the PCLOB warn intelligence community bosses if they're going to investigate a new program. While these changes may not seem like a big deal, they do suggest a clear attempt to undermine the power and authority of the PCLOB. Perhaps that's why the head of the PCLOB, David Medine, resigned early, before his appointment was up, just a few months ago.

At a time when we need a lot more independent oversight of government surveillance powers, it's unfortunate to see Congress apparently pushing for less oversight.

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Filed Under: congress, oversight, pclob, surveillance

32 Comments

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Anonymous Coward, 19 May 2016 @ 8:49am

It's no wonder Congress is fighting back. They weren't appointed to actually find problems with surveillance, they were appointed to reassure the public that there were no problems.
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David, 19 May 2016 @ 8:57am

Encrypt Everything
This is exactly why "Encrypt Everything" has gained popularity. We are losing faith that the government is respecting the rights of the people.
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Anonymous Coward, 19 May 2016 @ 9:08am

Signs and symptoms of corruption
When the people responsible for one of the checks and balances countering the executive branch reverses course and bends over backwards to support the branch they are supposed to be balancing there is a reason why. We now know that the electronic data and metadata of congress has been collected by one or more member of 5 eyes both before and after they were elected. The people are no longer being represented by their government.
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JonC (profile), 19 May 2016 @ 9:14am

Looks like we're going to need a constitutional amendment if we want actual oversight implemented. It's really sad that we'd have to go that far.
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MarcAnthony (profile), 19 May 2016 @ 9:26am

Viva la status quo
Oversight isn’t just being undermined, it’s being systematically neutered because actual oversight challenged institutionalized illegal practices. PLCLOB was the turd in NSA’s punchbowl.
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Anonymous Coward, 19 May 2016 @ 9:33am

Specifics
These articles shouldn't just say Congress they should name specific members, especially if they are up for reelection.
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Anonymous Coward, 19 May 2016 @ 9:33am

no news here.

we're broken and really should be replaced by something that works for us all instead of on us all. or most of us.
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Jason, 19 May 2016 @ 10:02am

Maybe I'm becoming (more?) cynical, but a question like "Why is Congress undermining the President's surveillance oversight board?" makes me immediately think the answer is "because the President is a Democrat".

It feels like we've gotten to a point when people can't even agree on a good idea if it happens to come from the "other" party.
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Uriel-238 (profile), 19 May 2016 @ 10:32am

There's an app for that too:
Secret interpretation. Even a robust oversight amendment would be interpreted to mean something else (e.g. assuring the public that things are just fine.)
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Anonymous Coward, 19 May 2016 @ 10:37am

Re:
Vote Trump, why vote for the lesser evil?
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Anonymous Coward, 19 May 2016 @ 10:40am

Re: Encrypt Everything
I lost faith a long time ago. With only an 8% congress approval rating, I am probably not the only one.
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That Anonymous Coward (profile), 19 May 2016 @ 11:05am

Congress fails time and time again to provide any of the oversight they are charged with providing, they can't let another body show them up.
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John Fenderson (profile), 19 May 2016 @ 11:21am

Re: Encrypt Everything
It's hard to maintain a belief such as "the government respects the rights of the people" in the face of an overwhelming amount of evidence to the contrary.
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John Fenderson (profile), 19 May 2016 @ 11:24am

Re: There's an app for that too:
Yes, this.

The direction that the feds have taken on these topics has convinced me that even the finest constitutional amendment ever written would fail to have the intended results.

We have deviated too far from the idea of "rule of law" for it to work. Other things need to be addressed first.
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Uriel-238 (profile), 19 May 2016 @ 11:28am

Voting Trump would make me feel dirty.
But so would voting for Hillary.

If I were to vote for a true evil it'd have to be Great Cthulhu or Astaroth.
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Coyne Tibbets (profile), 19 May 2016 @ 11:48am

Does PCLOB matter?
The intelligence agencies despise criticism--destroy the source if they can--hence this bill to take even the criticism away. But you have to realize that eliminating PCLOB entirely would have as much effect as lifting a teaspoon of water from the ocean; then you'll understand that eliminating their criticism of particular programs hardly matters.
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That One Guy (profile), 19 May 2016 @ 12:55pm

Oh that's easy enough
A few people from the Intelligence agencies went over and had a little chat about that mean PCLOB saying not very nice things about them, and like the tools they are congress promised them that they'd get right on making sure that the 'independent' 'oversight group' was reduced such that it would no longer be either.
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Dave Cortright (profile), 19 May 2016 @ 1:17pm

In other news, PCLOB starts pro bono program
PR Newswire, Washington DC (May 19, 2016)
Today the Privacy and Civil Liberties Oversight Board (PCLOB) is announcing—effective immediately—its pro bono program for all employees. Similar to Google's "20% time" program, it allows employees to investigate and report on offices of the government that the PCLOB isn't currently covering. The one notable difference is that employees will not be paid for their time doing this work. "Much like the pro bono legacy that lawyers have established, our program will encourage employees to give back to the underserved areas of the government to ensure all have equal access to our services" said a spokesperson for the PCLOB.

When reached for comment, a member of Congress who asked to remain anonymous said, "Well, fuck. Now we're going to have to find another way to bury this illegal activity."
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John Fenderson (profile), 19 May 2016 @ 4:09pm

Re: Re:
Neither Trump nor Clinton are the lesser evils. There are others running for the office who are much lower on the evil scale.

Don't think that you have to choose between Brand A and Brand B.
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John Fenderson (profile), 19 May 2016 @ 4:11pm

Re:
That's certainly the wrong answer, since Republicans are no less likely to do precisely the same thing.
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Uriel-238 (profile), 19 May 2016 @ 4:21pm

The problem is, you're not voting FOR anyone.
You're voting against the greater evil.

And you get one vote with which to do it.
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Anonymous Coward, 19 May 2016 @ 4:51pm

Re: Re:
Indeed, the greater evil is much better. There'll finally be a critical mass of people who are cool with burning it all down and starting fresh.
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Coyne Tibbets (profile), 19 May 2016 @ 5:03pm

Re: In other news, PCLOB starts pro bono program
How about the inevitable espionage charge? Does the program protect these whistle-blowing employees from being charged with espionage?

If not, then Congress need not worry its empty heads: because no employee is sticking his neck out while the axe awaits.
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John Fenderson (profile), 19 May 2016 @ 7:06pm

Re: The problem is, you're not voting FOR anyone.
True enough -- even counting third parties, the available roster is very slim. That said, no matter how large the roster is, the odds are that nobody will be 100% perfect -- so you're trying to select the least imperfect candidate you can under any imaginable system. In that sense, it is almost impossible to do anything but pick the lesser of available evils.

Or I could rephrase it more positively as selecting the candidate who is as perfect as possible. That is logically the same thing.

I actually found a candidate that appears to be good to me (so far, my research isn't complete). As in, I could vote for them without even having to hold my nose. But it's not a candidate put forth by the Dems or Reps.

I'm very, very happy about this. It looks like I'll be able to vote the way voting is intended: for a candidate that I largely (although not completely) agree with! That would be impossible if I were to constrain myself to choosing between Dems and Reps.
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Anonymous Coward, 19 May 2016 @ 8:57pm

They were never meant to actually do the job they were created for. It was a sop to the public.
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Wyrm (profile), 20 May 2016 @ 9:16am

Secret laws (or failing that, secret interpretations or secret definition of common words), covering secret trials and/or secret evidence.
I'm actually amazed they bother with secret investigations to begin with.

They can go to a secret judge, pleading secret charges with secret evidence, and they'd probably manage a conviction 9 times out of 10.
Heck, most of the times they might even be able to do this with a normal judge.
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That One Guy (profile), 20 May 2016 @ 12:07pm

Re:
Where's a First Word credit when you need one...
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Wendy Cockcroft, 20 May 2016 @ 3:17pm

Re: Re: The problem is, you're not voting FOR anyone.
To give your candidate a reasonable chance of getting in you need to take part in the campaign to get him or her elected and get as many other people on board as you can. In a first-past-the-post system it's a numbers game; you need as many people on side as possible.
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The Wanderer (profile), 21 May 2016 @ 4:10pm

Re: The problem is, you're not voting FOR anyone.
This being why I'm increasingly convinced the only way we'll get political reform in this country is if we start by implementing ranked-preference voting (Condorcet-satisfying, if at all possible), from the bottom up - i.e., first in cities and counties, then at the state level, on up until it's being used in federal elections.

Otherwise, the spoiler effect will serve to prevent enough people not beholden to the existing powers from getting into office, and the people in power will have no incentive to try to get things changed - because the changes which are needed, though good in the larger picture, would have the side effect of making it easier for other people to win their seats.
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The Wanderer (profile), 21 May 2016 @ 4:16pm

Re: Re:
I think his point is that it is Republicans who are doing it: a Republican Congress, the same one which has reflexively opposed anything the Democratic President's administration tries to do. (With the odd exception of the USTR.)

While a Republican Congress might indeed weaken the PCLOB under a Republican President as well, they would be doing it for different reasons from the reason they're doing it under a Democratic President.
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John Fenderson (profile), 21 May 2016 @ 4:19pm

Re: Re: Re: The problem is, you're not voting FOR anyone.
Yes indeed.
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John Fenderson (profile), 21 May 2016 @ 4:23pm

Re: Re: Re:
Yeah, I think I got muddled there. What I was trying to say was that neither party has the high ground on this stuff.
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