Update: NSA’s Bulk Telephone Surveillance Program Is Illegal, Privacy and Civil Liberties Oversight Board Report Says
To recap: Last year, former National Security Agency contractor Edward Snowden revealed several surveillance programs by the agency. There was a public outcry and protests and criticism from civil liberty and privacy advocates, among others. The surveillance program that received the most attention concerned surveillance and collection of phone records by the NSA. The Review Group on Intelligence and Communications Technologies (created by President Obama in August after the Snowden revelations) issued a report (archive pdf) recommending against the telephone call record database. Federal judges have issued conflicting rulings on the surveillance program. Last week, Obama announced reforms and proposed changes to the NSA surveillance programs, including the call record database surveillance program. The full transcript is here. Obama also issued a “Presidential Policy Directive, PPD-28,” (pdf) concerning signals intelligence activities.
Today, the Privacy and Civil Liberties Oversight Board (PCLOB), an independent oversight agency within the executive branch, released a report on the NSA’s surveillance program that collects telephone records in bulk. “Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court” (pdf). In it, the PCLOB says the NSA surveillance program is illegal and should be ended. Here’s what the report says, “The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program.” And that’s just part of the first recommendation of the PCLOB. The first recommendation goes on to say, “the government should purge the database of telephone records that have been collected and stored during the program’s operation, subject to limits on purging data that may arise under federal law or as a result of any pending litigation.”
The report challenged the efficacy of the surveillance program. “Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.”
Note that two of the five members of the PCLOB, Rachel L. Brand and Elisebeth Collins Cook, wrote separate statements to say that they do not believe the program is illegal and that they believe it has merit. However, they agree that the surveillance program needs to be changed and the full board supports most of the recommendations in the report.
Other recommendations from the PCLOB include: “The government should immediately implement additional privacy safeguards in operating the Section 215 bulk collection program”; “Congress should enact legislation enabling the FISC to hear independent views, in addition to the government’s views, on novel and significant applications and in other matters in which a FISC judge determines that consideration of the issues would merit such additional views”; “Congress should enact legislation to expand the opportunities for appellate review of FISC decisions by the FISCR and for review of FISCR decisions by the Supreme Court of the United States”; “The FISC should take full advantage of existing authorities to obtain technical assistance and expand opportunities for legal input from outside parties”; and “To the maximum extent consistent with national security, the government should create and release with minimal redactions declassified versions of new decisions, orders and opinions by the FISC and FISCR in cases involving novel interpretations of FISA or other significant questions of law, technology or compliance.” There are six more recommendations from the PCLOB.
To read the other recommendations,the analysis of the program’s legality, the report’s methodology, and a history of the NSA’s Section 215 surveillance program, read the full report.