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Is Anyone Watching Them While They Are Watching Us?

Is Anyone Watching Them While They Are Watching Us?

AUGUST 6, 2013

After living for six weeks in the transport zone of Sheremetyevo Airport in Moscow, Edward Snowden has been granted temporary asylum.  It’s been almost two months since he went public with information about what he called the NSA’s “architecture of oppression.”  He called himself Verax – Latin for truthful – when he first approached journalists with documents revealing multiple NSA digital surveillance programs, and the German arm of Transparency International is awarding him its Whistleblower of the Year Award.  But Snowden has been stripped of his U.S. Passport and charged with espionage.  He claims he risked his liberty to expose widespread violation of American citizens’ civil liberties and a flagrant abuse of power; the White House welcomed a discussion about balancing national security interests against individual privacy concerns shortly after Snowden’s first public appearance.  The debate, however, has died down, although in a rare bipartisan effort, moderate House Democrats and Tea Party Republicans joined forces and almost succeeded in defunding the NSA’s domestic cell phone surveillance program last week.  Even though the media coverage of Snowden and his leaks has devolved into a Tom Clancy version of Where’s Waldo?, questions have been focused on the legality, nature and scope of the U.S. military and intelligence communities’ counter-terrorism digital surveillance programs.  Is anyone watching them while they watch us?

The 9/11 Commission understood the tension between counter-terrorism and Constitutional rights and recommended  that a task force be created  to review the implementation of the Patriot Act and other counter-terrorism measures to insure the protection of privacy and other civil liberties in a post 9/11 world. The Intelligence Reform and Terrorism Prevention Act of 2004 provided for the creation of the Privacy and Civil Liberties Oversight Board (PCLOB).    As originally constituted, all five of its members were appointed by the President and it was an arm of the Executive Branch.  When the first PCLOB, appointed by President George W. Bush, attempted to forward its first report to Congress, the White House edited the critical sections out. Thereafter the lone Democrat on the panel resigned and a rethinking of how the PCLOB should operate ensued.

In 2007, new legislation was passed, establishing the PCLOB’s independence from the President, requiring that membership be divided between the political parties and that all five Presidential appointees receive Senate confirmation, and giving it subpoena power. President Bush’s appointees were not confirmed before he left office.

The intelligence community and civil libertarians waited for President Obama to pick his own PCLOB, but nothing happened.  Repeatedly, members of Congress and privacy groups demanded that the President take action.  They urged him to act quickly because amendments to the Patriot Act, enhanced airport security measures, the increasing use of cell phone tracking data, and general expansion of domestic and international surveillance was going forward without the review and oversight the PCLOB could provide.

In January 2011, President Obama finally nominated two members to the board, and a little less than a year nominated three more. The Senate confirmed four of the five members, leaving the vital position of chairman vacant. Finally, in May 2013 the Senate approved David Medine’s appointment as chair.

Almost ten years after the 9/11 Commission initially recommended its creation, the PCLOB held its first public working session on July 9, 2013.  This hearing focused on the collection of U.S. citizens’ cell phone metadata. Representatives from government, civil libertarians, and technology experts debated its legality, necessity, breadth, and the ultimate use of this information.  No conclusions were reached.  It was, essentially, the PCLOB’s first real meeting since 2007.  The Board and panelists agreed that the U.S. Government appears to be attempting to monitor 21st century data analytics using 20th century auditing methods.

Testimony before the PCLOB suggested that as a first step, in order for the PCLOB, Congress, or any other watchdog to have real teeth, a system of accountability, as facile and comprehensive as the technology that collects and sorts this mass of data in the first place, had to be implemented.  MIT Professor Daniel Weitzner explained to the PCLOB that accountable systems technology does just that. The big data technology that amasses the massive data haystacks described by Edward Snowden and finds the few precious needles buried within them, also keeps the barn doors closed and errant data farmers and snoopers away. There was no discussion of whether the U.S. intelligence network has incorporated this software into their data-gathering networks.

The PCLOB closed the hearing seeking public comment, especially from companies like Google and AT&T who collect this morass of information for the U.S. Government and has promised to provide its first report soon.  With the PCLOB now operational, it remains to be seen whether it will recommend that 21st technology now be used to help them and others watch the watchers and enable the U.S. Government to protect national security without creating the impression it is sacrificing civil liberties.

About the author


As Chief Compliance Officer and Deputy General Counsel, Joseph Jaffe oversees regulatory compliance issues and assists with legal matters for all of Guidepost Solutions’ offices. In addition, he leads the company’s Europe, Middle East and Africa practice. Joseph can be reached at


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