US Government Privacy Board Says NSA Bulk Collection of Phone Data Is Illegal


Spencer Ackerman and Dan Roberts – The Guardian

President Barack Obama rebuked over his defence of security agency’s gathering of Americans’ phone data.

Read the full PCLOB report on NSA data collection

23 Jan 2013 – The US government’s privacy board has sharply rebuked President Barack Obama over the National Security Agency’s mass collection of American phone data, saying the program defended by Obama last week was illegal and ought to be shut down.

A divided Privacy and Civil Liberties Oversight Board, an independent and long-troubled liberties advocate in the executive branch, issued a report on Thursday that concludes the NSA’s collection of every US phone record on a daily basis violates the legal restrictions of the statute cited to authorize it, section 215 of the Patriot Act.

“This program should be ended, allowing for a transition period,” board member James Dempsey said Thursday.

The recommendations of the five-member board, which featured two dissenters, amount to the strongest criticism within the US government yet of the highly controversial surveillance program, first disclosed by the Guardian thanks to whistleblower Edward Snowden. They give fresh support to congressional efforts at ending the practice on Capitol Hill – the main political battleground where the scope of surveillance will be readjusted this year.

According to the report, first published by the Washington Post and the New York Times, the privacy board found that the mass phone data collection was at best marginally useful for US counter-terrorism, a finding that went further than similar assessments by a federal judge and Obama’s own surveillance advisory board.

Not only did the board conclude that the bulk surveillance was a threat to constitutional liberties, it could not find “a single instance” in which the program “made a concrete difference in the outcome of a terrorism investigation”.

“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.”

During a live Q&A on the Free Snowden website on Thursday, Snowden called for the White House to end the program, citing the report’s estimate that the NSA’s searches of 300 phone numbers in 2012 resulted in 120 million phone numbers being placed into its storehouse of searched data.

Describing Obama’s decision to deliver his NSA reform speech last week ahead of the privacy board report’s publication as “interesting”, he said: “When even the federal government says the NSA violated the constitution at least 120 million times under a single program, but failed to discover even a single ‘plot’, it’s time to end ‘bulk collection’, which is a euphemism for mass surveillance. There is no simply justification for continuing an unconstitutional policy with a 0% success rate.”

The board tacitly rejected the NSA’s public claim that the bulk phone records collection may have made the difference in stopping a terrorist plot connected to cab drivers in San Diego – a rare case in which a government review body has specifically refuted the NSA’s aggressive post-Snowden PR campaign.

“We believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program,” it found.

The privacy board did not castigate the NSA. Its report said the NSA had not acted “in bad faith”, nor had it seen evidence of government misconduct. But it said that the documented incidences of the NSA exceeding its court-ordered mandates resulted from the program’s “technical complexity” and illustrated the “risks inherent in such a program”.

But the board dramatically sought to illustrate the implications on US privacy of the process NSA uses to query the phone when it has “reasonable articulable suspicion” of a connection to terrorism. While the NSA has said, and the privacy board affirmed, that most collected phone data is never examined by the agency, the fact that its analysts examined the call patterns of 300 numbers in 2012 meant that its “corporate store” of searched data “would contain records involving over 120 million phone numbers”.

Obama endorsed moving the bulk phone records collection out of the NSA’s hands and into those of a private entity, whose contours he left undefined in his Friday speech, his most extensive remarks on the surveillance to date.

But Obama accepted the intelligence community’s highly contested rationale that bulk phone records collection was necessary in order for the government to detect domestic connections to terrorism. “I believe it is important that the capability that this program is designed to meet is preserved,” Obama said.

National Security Council spokeswoman Caitlin Hayden said Thursday that the White House disagreed with the privacy board’s assessment of the program’s legality.

“Consistent with the recent holdings of the United States district courts for the southern district of New York and southern district of California, as well as the findings of 15 judges of the Foreign Intelligence Surveillance Court on 36 separate occasions over the past seven years, the administration believes that the program is lawful. As the president has said though, he believes we can and should make changes in the program that will give the American people greater confidence in it,” Hayden said.

The privacy board, which briefed Obama on its findings before his speech last week, recommends instead that the bulk collection ought to be ended outright, owing to its assessed lack of necessity and dubious legality.

Under the privacy board’s recommendation, federal agencies would be able to obtain phone and other records under court orders in cases containing an individualized suspicion of wrongdoing. But there would be no storehouse, private or public, of telephone data beyond what the phone companies keep in the course of their normal business activities.

That recommendation, which goes further than the one issued by Obama’s surveillance advisory board, bolsters a bipartisan bill in the House and Senate, called the USA Freedom Act, which aims to decisively end bulk domestic data collection.

But the privacy board assessment drew its own rebuke from Representative Mike Rogers of Michigan, a former FBI agent and chairman of the House intelligence committee.

“I am disappointed that three members of the board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” Rogers said in a pre-dawn statement that castigated the privacy board for going “outside its expertise” in criticizing the utility of the bulk phone data collection.

“As those of us with law enforcement experience know, successful investigations use all available tools – there often is no ‘silver bullet’ that alone thwarts a plot,” Rogers said. The White House did not have an initial reaction.

Two of the board members, Rachel L Brand and Elisebeth Collins Cook, both lawyers in the George Bush-era Justice Department, dissented on the finding that the bulk phone data collection was illegal.

“The government’s interpretation of the statute is reasonable and was made in good faith,” said Brand, who said she feared that public dissatisfaction with the surveillance revelations would contribute to a “pendulum swing” in policy that might handicap the NSA’s legitimate spying activities.

The three other members – chairman David Medine, retired federal judge Patricia Wald, and civil liberties advocate James X Dempsey – rejected the government’s argument, reaffirmed for years by a secret surveillance court, that the mass phone records collection was justified under a section of the Patriot Act that permits the government to amass records “relevant” to a terrorism inquiry.

But the board’s majority found that bulk collection could not be “relevant” to such an investigation “without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records”.

The board found that such widespread and suspicionless data collection could have a “chilling effect” on Americans’ constitutional rights. Its conclusion echoed Senator Ron Wyden, an Oregon Democrat on the intelligence committee, who has likened the metadata collection to a “human relations database”.

The PCLOB found unanimity on a proposal, supported by many in Congress, to create a bar of special civil liberties advocates before the Fisa court in exceptional cases, and in doubting Obama’s proposal to transition the bulk collection to a private entity would resolve either the privacy or the security concerns inherent.

“I would have concerns with counting on the providers to hold the records as an adequate substitute,” Cook said.

“The same amount of information would likely not be available, and less and less would likely be available over time. Companies do not want this, and I am hard-pressed to see how this would help with their customers’ concerns. I think the end result will be significant pressure to impose a data-retention requirement, which potentially poses more threats to privacy.”

Dempsey said that Obama “didn’t answer the question of what does the new program look like, he kicked that down the road. And he in my view hasn’t fully grappled with the statute that is currently on the books and currently the basis for the program doesn’t fit with the way the program is being operated. … It is not clear whether he fully appreciated the need to go back to some basics.”

Civil libertarians greeted the privacy board’s report as a vindication, particularly after the Obama speech fell short of their expectations.

“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. The release of this long-awaited report should spur immediate action by both the administration and Congress,” said ACLU deputy legal director Jameel Jaffer.

Senator Patrick Leahy, the Vermont Democrat who chairs the judiciary committee and co-authored the USA Freedom Act, said the report added to “the growing chorus” that wanted to end the phone metadata dragnet.

“The report reaffirms the conclusion of many that the Section 215 bulk phone records program has not been critical to our national security, is not worth the intrusion on Americans’ privacy, and should be shut down immediately,” Leahy said.

Leahy’s partner in the House, Wisconsin Republican James Sensenbrenner, said that the report “adds to the growing momentum behind genuine legislative reforms” and said it is “up to Congress to rein in abuse and restore trust in our intelligence community”.

Representative Adam Schiff, a California Democrat on the intelligence committee, predicted the report would spell “the final end of the government’s bulk collection of telephone metadata”.

The board is not finished with its assessment of NSA surveillance. It plans in the coming weeks to issue another report evaluating the NSA’s collection of bulk foreign Internet communications, which have included those with Americans “incidentally” collected.

It also amounts to the first major test of the board, created in 2004 as a post-9/11 reform. A decade’s worth of problems with independence, member vacancies and other issues meant the privacy board did not functionally operate until 2013, when it was unexpectedly confronted by the Snowden revelations.

Chairman Medine told the Guardian last Thursday that he felt the privacy board rose to the challenge, even though Obama’s speech preceded its own report, a White House decision that raised eyebrows in the civil liberties community.

“I  believe we’ve risen to the task, and are demonstrating both in the United States and around the world that the United States has a vigorous oversight body that will take a close look at these programs, have full access to them, and will be able to advise whether the programs do strike the right balance,” Medine said.

The White House, which set up the privacy board with hand-picked members of Washington’s establishment, distanced itself from the report on Thursday, particularly on the lawfulness and effectiveness of bulk collection.

“On the issue of 215, we simply disagree with the board’s analysis on the legality of the programme,” said press secretary Jay Carney.

“Consistent with the recent holdings of the US district courts of the southern district of New York and southern district of California as well as the finding of 15 judges of the Foreign Intelligence Surveillance court on 36 separate occasions over the past seven years, the administration believes the programme is lawful.”

However the administration insisted its decision to announce Obama’s review conclusions before publication of the privacy board report did not mean he had not listened to them.

“The president and the board met several times including near the end of his review and was able to benefit from some of the conclusions in draft form,” added Carney.

“In the speech on Friday and in the action to come, he is taking steps that were directly derived from some of the recommendations by PCLOB.”

While not specifying which conclusions he had listened to, the White House directly rejected the board’s conclusion that bulk collection had not stopped terrorist attacks.

“This programme combined with other programmes that are undertaking as part of our signals intelligence collection have had the effect of making Americans more safe, of disrupting potential terrorist plots [and] is a useful tool to combat terrorists who have designs on the United States and our allies,” said Carney.

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