An independent privacy watchdog recently found itself in the spotlight when its members split over imposing new limits on a law that allows for warrantless surveillance.
In September, members of the presidentially appointed Privacy and Civil Liberties Oversight Board (PCLOB) disagreed along party lines when it issued its long-awaited report on Section 702 of the Foreign Intelligence Surveillance Act (FISA), a powerful spying program that collects vast amounts of intercepted electronic data, including emails and texts.
The board’s Democratic majority recommended a court must be involved before intelligence analysts can view Americans’ intercepted communications — something that policymakers have called for in the wake of continued FBI abuses — while its two Republicans voted against the report in its entirety and filed their own statement.
The findings complicated the Biden administration’s months-long campaign to renew the statute, which will expire at the end of the year without congressional action.
It also displayed how important the board has become since it was created in 2013.
“We were a brand new agency that still needed to be built up. We barely had a website. We barely had functioning email. We didn't always have functioning phone service. We had almost no staff,” Sharon Bradford Franklin, who was the panel’s first executive director and now serves as its chair, said last week during a phone interview.
Before her appointment in 2022, Franklin served as co-director of the Security and Surveillance Project at the Center for Democracy & Technology and was the policy director for New America’s Open Technology Institute.
Recorded Future News spoke with Franklin about the split, where the members of the intelligence watchdog are in agreement and what PCLOB is working on next. The interview has been edited for length and clarity.
Recorded Future News: There was a lot of initial focus on the 3-2 split after the report’s release. In your view, was this unprecedented or are differences of opinion among members natural?
Sharon Bradford Franklin: First of all, there is only one report. The report on Section 702, released on September 28, is the board's report.
We are a bipartisan, five-member board and we speak through a majority of our members, whoever that majority is at the time. We have always had opportunities for separate statements by any board member. In fact, that is written into our authorizing statute, to contemplate that there would be separate statements and, in this case, there were two separate statements.
I myself also wrote one, so a total of three of the five of us have separate statements involved with this report.
Historically, it has been the norm, and not the exception, for board members to include separate statements outlining areas of disagreement with board reports. The separate statements are just that. They are not separate reports. Even the lengthy separate statement by members [Beth Williams and Richard DiZinno] doesn't stand on its own as a full report. It's a separate policy analysis and it contains separate recommendations.
RFN: The board previously issued a report on Section 702 in 2014 and there were differences of opinion then, too. Did you see any similarities between the two instances?
SBF: In both the 2014 report and in the 2023 report on Section 702 there have been separate statements where board members elaborated on areas of disagreement.
I'd like to focus on the areas of agreement in this 2023 report because there really is plenty of common ground among all five members.
The separate statement by members Williams and DiZinno explicitly notes that they share points of agreement with the report and that the board all worked together diligently for the better part of a year with a goal of reaching consensus. All five members agree that the program is valuable in protecting national security and that significant reforms are needed. No member has called for the program to lapse and no board member has called for a clean reauthorization.
With regard to our policy disagreements over reforming Section 702, all our board members have continued to engage with each other respectfully. These are substantive disagreements on critical policy issues. Since publishing our report, we've had board meetings and we have continued moving forward with other projects productively and continuing to engage with each other as professionals.
RFN: Why do you think the administration came out so adamantly against this report, specifically on the conclusion that individualized determination is necessary to query U.S. person information?
SBF: That one recommendation is the only area where the administration has come out against our report, at least to my knowledge, and this is a policy disagreement between our board majority and the administration.
We recommended that with regard to U.S. person queries, which are searches through collected data seeking information about specific Americans, that Congress should require FISA court approval to ensure that Americans’ privacy rights are protected through the fundamental safeguard of independent judicial review.
Members Williams and Devino disagree that FISA court review should be required, as does the administration. As they have articulated it, it comes down to an assertion that this will unduly slow down the process and harm the intelligence agency's ability to conduct these queries.
The board's recommendation was carefully crafted to address and mitigate those concerns. In particular, the recommendation includes two exceptions: one for exigent circumstances, and one for situations in which the government personnel are able to obtain the express consent of the Americans whose information they want to seek through a U.S. person query.
We crafted the recommendation such that the FISA court review would only be required when there's actually a hit in the database.
This is important in terms of the practicality because the vast majority of U.S person queries, particularly for the FBI, do not return results. The statistic that appears in our report is that, in calendar year 2022, only 1.58% of U.S. person queries returned a hit. So for most of those queries under the recommendation as restructured, they would not need to seek FISA court approval.
RFN: Did the debate demonstrate PCLOB’s standing as an independent watchdog of the nation’s security programs?
SBF: Absolutely. We are not a voice within the administration. We are not part of the administration. We are an independent agency. And I would agree that it absolutely demonstrates that we are independent. We do not need to vet our recommendations with the administration and seek their approval before we publish them because we're independent.
And, obviously, this is a key example where we disagree.
RFN: Does the board have a further role to play in the renewal debate?
SBF: We do.
We can, and will, engage with Congress as legislative proposals are introduced and being developed. It's possible one or more of us would be called on to testify again in Congress.
RFN: What else is the board working on?
SBF: We said publicly, before the 702 report was published, that we considered ourselves to have three top priority projects.
One of them, of course, was section 702. The other two are: domestic terrorism, that's our work on examining how the government acts to protect us from domestic terrorism; and the third involves work under an Executive Order 14086. It was issued to implement U.S. commitments under a new U.S.-EU data privacy framework that is designed to ensure transatlantic data flows and to restore protections after the Court of Justice of the European Union struck down the privacy shield back in July 2020.
We also have on our docket several projects that were approved by previous quorums of board members that we are moving forward right now.
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Martin Matishak is a senior cybersecurity reporter for The Record. He spent the last five years at Politico, where he covered Congress, the Pentagon and the U.S. intelligence community and was a driving force behind the publication's cybersecurity newsletter.