The wholesale telephone and Internet eavesdropping efforts of the National Security Agency (NSA) have had little discernible impact on national security but are clearly illegal, according to a federal watchdog agency whose report on the issue is due for release today.
The NSA practice of collecting telephone metadata in bulk “raises serious threats to privacy and civil liberties,” “lacks a viable legal foundation,” and has demonstrated only limited value, according to the Jan. 23 report from the Privacy and Civil Liberties Oversight Board (PCLOB).
PCLOB was created in 2007 specifically to warn Congress and the White House of counter-terrorism efforts that might infringe the civil liberties of Americans they were meant to protect.
“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,” the five-person board wrote in the report, which was released to government officials last month but became public Jan. 23.
The Board reported identifying only one case in which NSA-collected phone records might have helped stop a plot or capture a potential terrorist, but identified its contribution in that case as peripheral to investigatory work of other agencies that would have had the same result.
Collecting metadata on nearly every phone call made in the United States, regardless of the chance that any single call would be considered integral to an ongoing investigation, creates serious legal concerns under the First and Fourth Amendments, the report found. “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,” the PCLOB report said. “Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights.”
The conclusion of the PCLOB report is far more specific and negative than the advisory panel appointed by the White House to advise President Obama on PRISM and other NSA programs revealed in documents leaked by former NSA contractor Edward Snowden.
The report is also a direct contradiction of the defense presented in a Jan. 17 speech (full text here) during which President Obama acknowledged the privacy concerns behind an ongoing controversy over the role of the NSA, but concluded that its work was too valuable a tool to live without. Rather than halt the program, Obama announced that the collected metadata would be held by telephone carriers or other third parties rather than by the government itself and would require some form of judicial oversight before it could be searched.
The controversy has split the usual political alliances on Capitol Hill, causing lawmakers to line up in support or opposition based on factors other than political party affiliation.
The Intelligence Committees of both the House and Senate came out in favor of keeping the data-collection programs active and in place. The Judicial Committees of both houses recommended the practice be outlawed. House Intelligence Committee Chairman Mike Rogers (R-Mich.) issued a statement slamming the Board’s decision “to step well beyond their policy and oversight role and conduct a legal review of a program that has been thoroughly reviewed.”
“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,” countered an almost simultaneously-issued statement from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.). “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.”
White House officials met with members of the PCLOB before the President’s speech, reviewed a draft copy of the board’s report and incorporated its thinking into the policy announced by the President Friday, Reuters quoted White House National Security Council spokesperson Caitlin Hayden as saying.
The White House is unlikely to go along with the PCLOB’s recommendation that the bulk data collection program be shut down. “We disagree with the Board’s analysis on the legality of the program,” Hayden said.
The White House also stopped short of agreeing with conclusions of the board appointed by the President, which recommended phone surveillance be limited to court-approved sweeps of carefully defined scope.
The size, scope and availability of that database is a primary Constitutional violation all by itself, regardless of judicial interpretations that have defined metadata about a phone call as being irrelevant to the privacy protections on the content of the call itself, the PCLOB report argued: “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.”