NSA Phone Program Is Illegal, Privacy Board Says

The government board deals another blow to the controversial spying program.

A sign stands outside the National Security Administration (NSA) campus in Fort Meade, Md., Thursday, June 6, 2013.
National Journal
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Brendan Sasso
Jan. 23, 2014, 4:37 a.m.

The Na­tion­al Se­cur­ity Agency’s pro­gram col­lect­ing re­cords on vir­tu­ally all U.S. phone calls vi­ol­ates the law, ac­cord­ing to a gov­ern­ment pri­vacy board.

In a 238-page re­port re­leased Thursday, the Pri­vacy and Civil Liber­ties Over­sight Board calls for an end to the pro­gram, say­ing it has nev­er stopped a ter­ror­ist at­tack and threatens the pri­vacy of mil­lions of Amer­ic­ans.

The re­port is yet an­oth­er blow to the con­tro­ver­sial pro­gram, which was first re­vealed by Ed­ward Snowden last year.

Last Fri­day, Pres­id­ent Obama an­nounced his sup­port for cer­tain re­forms to the pro­gram, in­clud­ing re­quir­ing court ap­prov­al for the NSA to search through the phone data and mov­ing the data­base out of the gov­ern­ment’s hands. But Obama in­sisted that the NSA keep its cap­ab­il­ity to mine mil­lions of phone re­cords, even if the struc­ture of the pro­gram is changed.

Con­gress cre­ated the Pri­vacy and Civil Liber­ties Over­sight Board at the re­com­mend­a­tion of the 9/11 Com­mis­sion, which called for an in­de­pend­ent gov­ern­ment agency to guard pri­vacy rights. The small agency only re­cently be­came op­er­a­tion­al, and Thursday’s re­port is its first ma­jor salvo against gov­ern­ment sur­veil­lance.

The board voted 3-2 to back the con­clu­sions that the bulk col­lec­tion of phone re­cords is il­leg­al and should end. But all five board mem­bers called for a series of im­me­di­ate changes, such as re­quir­ing court ap­prov­al for searches, re­du­cing how long the NSA holds the data, and lim­it­ing the de­grees of sep­ar­a­tion ana­lysts can stray from their ini­tial tar­get from three to two. Obama backed sim­il­ar re­forms in his speech last Fri­day.

The board’s re­com­mend­a­tions go farther than the ad­vis­ory group Pres­id­ent Obama cre­ated last year to re­view the NSA’s pro­gram. But that re­view group also called for ma­jor changes to the bulk data col­lec­tion and con­cluded the pro­gram has not thwarted any ter­ror­ist at­tacks.

The NSA claims that bulk col­lec­tion is au­thor­ized un­der Sec­tion 215 of the Pat­ri­ot Act, which gives the gov­ern­ment the power to col­lect busi­ness re­cords that are “rel­ev­ant” to a ter­ror­ism in­vest­ig­a­tion. The For­eign In­tel­li­gence Sur­veil­lance Court has ap­proved the NSA’s ar­gu­ment, say­ing all U.S. phone calls are “rel­ev­ant” be­cause the agency needs the full data­base to map po­ten­tial ter­ror­ist con­nec­tions.

But the pri­vacy board called the gov­ern­ment’s jus­ti­fic­a­tion “cir­cu­lar” and “un­ten­able.”

“If Sec­tion 215’s rel­ev­ance re­quire­ment is to serve any mean­ing­ful func­tion, however, rel­ev­ance can­not be premised on the gov­ern­ment’s de­sire to use a tool whose very op­er­a­tion de­pends on col­lect­ing in­form­a­tion without lim­it,” the board wrote.

The pri­vacy group also claimed the pro­gram vi­ol­ates the Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act, which re­quires that tele­phone com­pan­ies only turn over re­cords to the gov­ern­ment in cer­tain cir­cum­stances.

The board mem­bers wrote that the pro­gram raises con­sti­tu­tion­al ques­tions un­der the First and Fourth Amend­ment. They noted that the Su­preme Court ruled in 1979 that po­lice do not need a war­rant to ob­tain re­cords such as phone num­bers, call times, and call dur­a­tions. But the board ar­gued that the Su­preme Court nev­er en­vi­sioned the kind of sweep­ing sur­veil­lance the NSA is now con­duct­ing, and said it is un­clear how the cur­rent Su­preme Court would view the pro­gram.

A fed­er­al judge in Wash­ing­ton ruled last month that the NSA’s phone-data col­lec­tion is un­con­sti­tu­tion­al, but oth­er fed­er­al judges in New York and Cali­for­nia have up­held the pro­gram.

Caitlin Hay­den, a White House spokes­wo­man, said Obama and oth­er ad­min­is­tra­tion of­fi­cials met with the pri­vacy-board mem­bers mul­tiple times as they were pre­par­ing their re­port, and he took their views in­to ac­count while pre­par­ing last week’s speech.

But she said the White House re­jects the board’s find­ing that the NSA pro­gram is il­leg­al.

“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,” she ad­ded.

Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy said the board’s re­com­mend­a­tions “add to the grow­ing chor­us call­ing for an end to the gov­ern­ment’s drag­net col­lec­tion of Amer­ic­ans’ phone re­cords.”

“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,” he said.

Leahy and Re­pub­lic­an Rep. Jim Sensen­bren­ner, the ori­gin­al au­thor of the Pat­ri­ot Act, are push­ing the USA Free­dom Act, which would end the bulk col­lec­tion and im­pose oth­er lim­its on the NSA’s powers.

The pri­vacy board also re­com­men­ded that Con­gress cre­ate an in­de­pend­ent ad­voc­ate to push for pri­vacy rights be­fore the For­eign In­tel­li­gence Sur­veil­lance Court. The court cur­rently only hears ar­gu­ments from the gov­ern­ment in fa­vor of sur­veil­lance.

The board said the gov­ern­ment should re­lease more in­form­a­tion to the pub­lic about the NSA’s pro­grams and the in­tel­li­gence court’s rul­ings.

The re­port was backed by Board Chair­man Dav­id Med­ine, a former Fed­er­al Trade Com­mis­sion law­yer; James X. De­mp­sey, a pri­vacy ad­voc­ate with the Cen­ter for Demo­cracy and Tech­no­logy; and Pa­tri­cia M. Wald, a re­tired fed­er­al judge.

Rachel L. Brand and Elise­b­eth Collins Cook, both former law­yers for the Bush ad­min­is­tra­tion, agreed with some of the find­ings, but not that the pro­gram is il­leg­al and should end.