Privacy board finds NSA metadata program illegal, amid dissent
The independent board of privacy and legal experts appointed by President Barack Obama to review the National Security Agency’s controversial telephone metadata collection program released its long-awaited public report today and concluded the program is illegal and should be shut down.
In a sharply worded 238-page report, obtained by FedScoop, the five-member Privacy and Civil Liberties Oversight Board said “NSA’s bulk telephone records program bears almost no resemblance to” the legal authorities granted under Section 215 of the USA Patriot Act — the statute under which the program was authorized.
Although the board did not find any willful attempts by NSA to abuse its access to the data being collected, it concluded “Section 215 does not provide an adequate legal basis to support the program.” The board called for the government to end the program, or to institute new privacy safeguards immediately as it begins to “wind down” the program and explore alternatives.
The report outlines four specific reasons for concluding the metadata program lacks a proper legal basis. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk — potentially encompassing all telephone calling records across the nation — they cannot be regarded as “relevant” to any FBI investigation as required by the statute. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated — an approach lacking foundation in the statute and one inconsistent with FISA as a whole. And finally, “the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything,” the report states.
The board concluded it would be impossible for NSA to prove that each of the billions of records collected daily are relevant to an ongoing terrorist 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.”
NSA’s metadata collection program also raises constitutional concerns that existing Supreme Court doctrine has never before had to confront.
“The scope and duration of the program are beyond anything ever before confronted by the courts, and as a result of technological developments, the government possesses capabilities to collect, store and analyze data not available when existing Supreme Court doctrine was developed,” the report states.
And the new technological capabilities demonstrated by NSA hold the potential to alter the balance of power between the government and private citizens.
“Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens,” the report concludes. “An even more compelling danger is that personal information collected by the government will be misused to harass, blackmail, or intimidate, or to single out for scrutiny particular individuals or groups.”
And while the president attempted to allay such fears during his Jan. 17 speech on surveillance reform, the privacy review board pointed to historical evidence of the government’s abuse of personal information during the 20th century and said “the risk is more than merely theoretical.”
While the report may be a harsh rebuke of the president’s more cautious approach to ending the metadata program, the five members of the privacy board were not unanimous in their analysis. Two of the five members, Elisebeth Collins Cook and Rachel Brand, issued separate statements dissenting from some of the board’s conclusions.
“Although I believe the Section 215 program should be modified, I do not believe it lacks statutory authorization or must be shut down,” wrote Cook, a former Justice Department lawyer under the Bush administration. “Second, I do not agree with the board’s constitutional analysis of the program, as it is concerned primarily with potential evolution in the law, and the potential risks from programs that do not exist.”
Cook also disagreed with the board’s findings that the metadata program has, to date, been relatively ineffective in uncovering terrorist threats.
Brand, another former Bush administration appointee at DOJ who now serves as a lawyer for the U.S. Chamber of Commerce, went even further in her dissent.
“I cannot sign on to the substance of much of the board’s analysis,” Brand wrote. “I am concerned that the report gives insufficient weight to the need for a proactive approach to combating terrorism, and I hope that the report will not contribute to what has aptly been described as cycles of ‘timidity and aggression’ in the government’s approach to national security.”
Brand also disagreed with the board’s reasoning as to the legality of the Section 215 metadata program. “The government’s interpretation of the statute is at least a reasonable reading, made in good faith by numerous officials in two administrations of different parties who take seriously their responsibility to protect the American people from terrorism consistent with the rule of law,” Brand wrote.
The metadata program, Brand wrote, is “literally a system of numbers with no names attached to any of them. As such, it does not sweep in the most sensitive and revealing information about telephone communications. This seems to have gotten lost in the public debate.”