NSA Debate Fueled by Privacy Board Saying Program Illegal

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A civil liberties activist wears large glasses that read, "Stop Spying" during a rally against the NSA's surveillance program in Washington D.C. on Jan. 17, 2014. Close

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Photographer: Nicholas Kamm/Getty Images

A civil liberties activist wears large glasses that read, "Stop Spying" during a rally against the NSA's surveillance program in Washington D.C. on Jan. 17, 2014.

Critics of sweeping U.S. surveillance programs were handed a new weapon in their attempt to limit spying with a privacy board’s report that called mass collection of phone records ineffective and illegal.

Although late to the game, the panel’s report was seized on by companies and privacy advocates seeking to restrict electronic spying and by lawmakers skeptical of President Barack Obama’s plan to continue using so-called metadata from billions of telephone calls worldwide.

The conclusions of the five-member Privacy and Civil Liberties Oversight Board reaffirm that the sweeping collection of telephone records “has not been critical to our national security, is not worth the intrusion on Americans’ privacy, and should be shut down immediately,” Democratic Senator Patrick Leahy of Vermont, the chairman of the Judiciary Committee, said in a statement after the panel’s report was released yesterday.

Technology companies, which have been pressuring Obama to restrict National Security Agency snooping, plan to use the report to push for changes in the law, according to a representative of one of the companies, who asked not to be identified because the discussions are private.

The 238-page report represents the last major analysis of the spy programs expected before Congress delves into debate over legislation to impose new limits, oversight and transparency on the NSA’s programs.

Legislative Moves

Leahy has co-sponsored legislation to limit data collection by the government and critics of the NSA surveillance may seek to attach amendments to legislation to reauthorize spending for U.S. intelligence. Any such move will run into opposition from the White House and from lawmakers who support the programs, which were instituted after the Sept. 11 attacks.

A White House advisory panel in December concluded the U.S. data collection program is legal, while proposing some changes to the government’s approach. Obama announced his own conclusions last week, calling the NSA programs necessary and within the law.

“The administration believes that the program is lawful,” Caitlin Hayden, spokeswoman for the National Security Council, said yesterday.

Dianne Feinstein, a California Democrat who leads the Senate’s intelligence panel, and Mike Rogers, a Michigan Republican who leads the House’s intelligence committee, are defending the NSA’s phone records collection.

Board Split

The privacy board’s 3-2 split yesterday on the question of lawfulness of collecting phone data from such carriers as Verizon Communications Inc. (VZ) and AT&T Inc. (T) may diminish the impact of its report.

Rachel Brand, one of the board’s two dissenters, said the majority finding is not “dispositive or the nail in the coffin of anything” and “both the majority and separate views will inform the congressional debate.”

Attorney General Eric Holder is scheduled to testify before the Senate Judiciary Committee on the NSA’s programs on Jan. 29, the day after Obama’s State of the Union address.

House Judiciary Committee Chairman Bob Goodlatte said in an e-mailed statement that his committee plans a hearing “in the coming weeks” on the recommendations made by the privacy board, the Review Group on Intelligence and Communications Technology that delivered its report last month, and the proposals laid out by Obama.

Storing Records

In a nod to privacy concerns, Obama gave Holder and intelligence officials 60 days to develop a plan for storing bulk telephone records outside of government custody.

The privacy board’s chairman, David Medine, a Federal Trade Commission official in President Bill Clinton’s administration, said he was skeptical that a plan could be drafted in such a short time.

That deadline will be “hugely challenging,” Medine said. “These are very complex issues.”

The reviews of NSA surveillance follow an international backlash from disclosures leaked last year by former government contractor Edward Snowden, now in Russia under asylum and facing espionage charges in the U.S.

Snowden, in an Internet question-and-answer session yesterday that couldn’t be independently verified, said it will be impossible for Congress to ignore the privacy board’s conclusions.

Snowden’s Reaction

“There is simply no justification for continuing an unconstitutional policy with a zero-percent success rate,” he wrote on the website run by The Courage Foundation, which describes itself as a trust formed to help defend journalistic sources. “Americans should look to the White House and Congress to close the book” on the bulk collection program.

Leahy has held four hearings on the issue so far, though hasn’t announced a date when his committee will mark up the legislation he’s proposed or when the Senate might take it up. Under the bill, NSA or the Federal Bureau of Investigation would have to get a court order on a case-by-case basis to seek records from phone companies.

There are other options for NSA critics. Both the House and Senate Intelligence committees have approved legislation to reauthorize national intelligence activities for the 2014 fiscal year, which ends Sept. 30, though neither have been scheduled for a floor vote.

The statute underlying NSA data collection, known as Section 215 of the Patriot Act, expires June 1, 2015.

To contact the reporters on this story: Margaret Talev in Washington at mtalev@bloomberg.net; Chris Strohm in Washington at cstrohm1@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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