A once-neglected and overlooked executive branch oversight board declared today that the NSA’s bulk telephone metadata snooping is illegal, does little to combat terrorism, and should be ended.
The Privacy and Civil Liberties Oversight Board’s 3-2 conclusion that the program “implicates constitutional concerns” is not binding on the government and comes a week after President Barack Obama announced major changes to the snooping program based on recommendations from a different review board.
The panel’s investigation, proposed last year by Sen. Tom Udall (D-New Mexico), examined one of the largest known privacy breaches in the nation’s history disclosed by NSA whistleblower Edward Snowden in June. Despite contrary assertions from intelligence officials, the panel found that the spying did little, if anything, to combat terrorism.
“Based on information provided to the Board, we have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation,” the report found. “Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
Regarding Americans’ privacy, the report found:
“When the government collects all of a person’s telephone records, storing them for five years in a government database that is subjected to high-speed digital searching and analysis, the privacy implications go far beyond what can be revealed by the metadata of a single telephone call,” the majority wrote.
The three members were David Medine, a former associate director of the Federal Trade Commission, Patricia Wald, a former federal judge and James Dempsey, a privacy attorney with the Center for Democracy & Technology.
The report added:
“The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes,” it said. “Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights.”
Dissenting board members were former Justice Department lawyers Rachel Brand and Elisabeth Collins Cook. Brand said they were “concerned about the detrimental effect this superfluous second-guessing can have on our national security agencies and their staff.”
The five-member board, created in 2004 on the recommendation of the 9/11 Commission, first met in 2006. One member resigned a year later after the President George W. Bush administration made more than 200 revisions to its first report.
The board was subsequently transformed into an independent agency, with the power of subpoena and to review classified material. But the panel was virtually idle from 2008 until 2012, when four board members were confirmed by the Senate, with the fifth one last year.
From at least 2006, a secret tribunal known as the Foreign Intelligence Surveillance Court has been ordering the nation’s telcos, at the NSA’s request, to hand over the phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.
The report said the FISA Court, as it’s known, did not perform a constitutional analysis of the program until last year.
“The recommendations of the Privacy and Civil Liberties Oversight Board add to the growing chorus calling for an end to the government’s dragnet collection of Americans’ phone records,” said Sen. Patrick Leahy, (D-Vermont) and the head of the Senate Judiciary Committee.
American Civil Liberties Union Deputy Legal Director Jameel Jaffer, who testified before the board in July, had this reaction:
“The NSA’s call-records dragnet is illegal and ineffective and presents a serious threat to civil liberties. The board’s report makes even clearer that the government’s surveillance policies, as well as our system of oversight, are in need of far-reaching reform.”
President Barack Obama announced last week a revamping of the NSA’s vast surveillance powers by ending the government’s bulk retention of that metadata. Obama’s plan, which seeks congressional input and has yet to be implemented, preserves the government’s ability to access that treasure trove of telephone data that he said should be maintained by a yet-to-be determined, non-government entity instead of the NSA.
The “President’s Review Group on Intelligence and Communications Technologies” last month also recommended that the NSA should only be able to query those 1 trillion records via an order from the secret Foreign Intelligence Surveillance Court. Effective immediately, Obama embraced that recommendation but left an exception in the case of “a true emergency.”
Until now, the government could query the database for any reason, but had settled on a so-called standard of “reasonable articulable suspicion.” For the moment, the data will remain in the NSA’s control as Obama tasked Attorney General Eric Holder and others to figure out how it can be stored by a neutral third party.
Regardless of today’s announcement, the metadata issue will soon be front and center before Congress. That’s because the provision of the Patriot Act, Section 215, that is being cited to allow the metadata snooping expires June 1, 2015.
Meanwhile, two different federal judges have ruled on the program. One found it unconstitutional, finding that its privacy risks outweighed the few benefits of the program. That decision was stayed pending appeal. Another federal judge last year upheld the program and said it dramatically assisted the government in combating terrorism.
