Steptoe Cyberlaw Podcast, Episode #28: An Interview with David Medine

Our guest this week is Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), David Medine.  We do a deep dive into the 702 program and the PCLOB’s report recommending several changes to it.  Glenn Greenwald’s much-touted “fireworks finale” story on NSA may have fizzled, but this week David and I deliver sparks to spare. I question the PCLOB’s enthusiasm for giving new responsibilities to the flawed Foreign Intelligence Surveillance Court (Judge Lamberth and his wall make an appearance).  I challenge David’s notion (shared with Judge Wald) that the 702 program, crucial as it is for our terrorism defenses, nonetheless stands balanced so close to the edge of constitutionality that without new minimization restrictions it could tip over into constitutional unreasonableness at any moment.  David gets a chance to comment on stories about U.S. citizens whose data is stored by the NSA, including Glen Greenwald’s disclosure of the Americans targeted by NSA and Bart Gellman’s defense of his Washington Post article.  (There we find common ground; like me, David has doubts about the significance of Gellman’s claim that “9 out of 10 accountholders” in NSA’s database aren’t targets.)  And we argue over whether NSA analysts need 89,000 new make-work assignments justifying their targets, let alone a massive judicial logjam before they can search data already gathered lawfully.  All in all, a rewarding workout. The news roundup is truncated to allow more time for the Medine dialogue, but this week in NSA features includes more Snowdenista journalist misrepresentations, including the demonstrably false claim that NSA has flagged the Linux Journal as an “extremist forum.” The Senate Intelligence Committee produces a cybersecurity information sharing bill as a bookend to the House’s bill, but getting it to the floor and then to the President is going to be tough in today’s climate and under the current calendar.  Maury Shenk tells us the Russians are planning to balkanize the Internet and in the name of privacy no less. He also reports that the UK is pursuing stopgap legislation to make sure it doesn’t lose its data retention authority in the wake of an unfavorable ECJ decision, and to allow UK law enforcement to require foreign entities to turn over data under a warrant.  David can’t help intervening to remind us that the UK has also proposed creating their very own PCLOB.