Civil Liberties, Privacy and Transparency Chief Speaks to
Intelligence Oversight at Public Forum
Ben Huebner, Chief of ODNI’s Civil Liberties, Privacy, and Transparency Office, spoke about the Intelligence Community’s (IC) efforts to protect civil liberties and privacy when using Foreign Intelligence Surveillance Act (FISA) authorities at the Cato Institute Surveillance Conference Dec. 6, in Washington, D.C.
The Cato Institute hosted the all-day public conference to explore, independent of politics, the tension between holding intelligence agencies accountable to the legislative branch of government while allowing for the appropriate use of national security authorities.
Huebner joined privacy advocates as the only government participant on a panel entitled, “Overseeing Programmatic Surveillance: FISA §702 and §215.”
Charlie Savage, Washington correspondent for the New York Times and the panel moderator, asked how the civil liberties oversight role differs at ODNI vice the CIA.
Huebner, who was previously the CIA’s Privacy and Civil Liberties Oversight officer, said the role at CIA is more operational.
“Do we do programs or not?” said Huebner. “At ODNI, the role is more about determining the overall IC approach.”
The panel discussed the IC’s use of the USA FREEDOM Act that allows for the collection of call detail records (CDRs). In 2015, the USA FREEDOM Act made changes to Section 215 of the PATRIOT Act to include ending bulk collection by the government of domestic telephony metadata.
Said Huebner, the fundamental difference from the prior (Section 215) program is that under the USA FREEDOM Act, call detail records must now remain at the provider.
The USA FREEDOM Act provision authorizing CDRs was originally due to expire Dec. 15, until Congress extended its authorization three months as part of the short-term spending bill that kept the government funded. However, the government has stopped collecting CDRs.
When addressing whether Congress should reauthorize the CDR authority, Huebner explained that one point of view is, if “We’re not using it, move on. But that doesn’t mean it’s not a useful tool in the toolkit. We want to use it when judiciously appropriate.”
Savage also addressed the value of requiring national security authorities to expire through a sunset clause, explaining, “The notion of a sunset is periodic review (by Congress).”
The IC has to justify reauthorization, so that forces conversation about the value of those authorities, said Carrie Cordero, panelist from the Center for a New American Security.
“The goal of [the] USA FREEDOM [Act] was to put in more robust review and transparency,” said Neema Singh Guliani, Legislative Counsel for the American Civil Liberties Union.
Guliani said the new program of collecting CDRs is better than the previous program, but still falls short of where we should be. She cited the positive creation of allowing for an amicus to be appointed to advocate before the FISA Court on novel and significant cases, but said the court sometimes rejects their arguments.
The panel then discussed oversight of FISA Section 702, which authorizes surveillance of non-U.S. persons reasonably believed to be outside the United States for foreign intelligence purposes.
“Oversight starts within the agencies,” said Huebner. “But it’s also a joint responsibility between the Department of Justice and my agency.”
The FISC approves IC FISA 702 targeting, minimization and querying procedures that dictate how the government can obtain and use data.
Congress enacted FISA 702 with oversight by all three branches, executive, judicial and legislative.
“One issue,” said Cordero, “is if that process still functions.”
Other conference sessions included, “Watching the Detectives: Improving Intelligence Oversight;” “A Conversation with the Privacy and Civil Liberties Oversight Board;” and “Return of the Crypto Wars,” among others.
The Cato Institute, according to its website, is a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets, and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues.