A divided U.S. privacy-policy board concluded the National Security Agency’s collection of bulk telephone data is illegal and should be stopped, giving fresh support for opponents of the government’s surveillance programs.
The five-member Privacy and Civil Liberties Oversight Board, created by Congress under post-Sept. 11 anti-terrorism laws, said in a 238-page report that the program to collect and store the records has provided only “minimal” help to the U.S. in thwarting terrorist attacks.
“I do not think we should just accept bulk collection as a given,” Jim Dempsey, speaking for the panel’s majority, said today at a meeting where the report was adopted. “We have to go back to the fundamental question: should we be collecting bulk data and under what standards?”
The board’s conclusions present a challenge for President Barack Obama, who is being pressed by phone and Internet companies, foreign governments, civil libertarians and some members of Congress to restructure the NSA’s surveillance activities following disclosure of the programs by former government contractor Edward Snowden.
The privacy panel has no authority to change the programs and Obama last week presented his own plan without waiting for the board’s report. The president said he would continue to allow government use of bulk phone records yet would prevent NSA from storing the data and require the agency get court approval to use it.
By questioning the program’s legality, the panel may give ammunition to critics in Congress and fuel legal challenges. At the same time, the board’s 3-2 split on the question of lawfulness of collecting phone data from such carriers as Verizon Communications Inc. and AT&T Inc. may diminish the impact of the report and highlights the complexities of balancing security and democratic freedoms.
One of the dissenters on the panel, Washington attorney Elisebeth Collins Cook, said she and fellow board member Rachel Brand “do no believe the program poses the same kinds of risk to privacy as does the majority and would not shut down the program for legal or policy reasons.”
Caitlin Hayden, spokeswoman for Obama’s National Security Council, said the administration also disagreed with the report’s analysis of the legal issues. “The administration believes that the program is lawful,” she said in an e-mail.
Brand said the legal question may have to be settled by the courts.
The report follows two recent conflicting federal court rulings in cases challenging the legality of telephone call data collection program.
On Dec. 27, a judge in Manhattan said the NSA’s collection didn’t violate the Fourth Amendment to the U.S. Constitution, which bars unreasonable searches and seizures. U.S. District Judge William Pauley III, relying on a 1979 Supreme Court decision that Americans don’t have a privacy right to the numbers they call, ruled the government was within the law to collect phone data under a section of the Patriot Act.
Days earlier, U.S. District Judge Richard Leon, in Washington, ruled that the program probably violates privacy rights, saying technology had so changed from 1979 that the high-court precedent no longer had meaning.
In line with the conclusion of the panel’s majority, Leon, who allowed a lawsuit against the NSA to proceed, said he wasn’t convinced at this point that “the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations.”
“This is a really huge deal because of the board’s access to information about the operation of the program coupled with the care with which it evaluates and refutes the legal authorities offered in support the program,” said Randy Barnett, a law professor at Georgetown University. Barnett has urged the U.S. Supreme Court to revisit a 34-year-old ruling undergirding the legal justification for the NSA’s collection of call data.
The report “lends enormous weight” to Leon’s ruling because “the courts basically are mainstream institutions and it matters where the mainstream is,” Barnett said in a telephone interview.
Stewart Baker, a former NSA general counsel, downplayed the legal impact of the report.
“I think you can fairly describe it as an amicus brief written by three people,” said Baker, now with Steptoe & Johnson LLP in Washington. “This is free advice to the court from a board that doesn’t have any particular expertise on the legal issues.”
The records collected under the NSA program consist of so-called metadata, including the numbers used to make and receive calls and their duration. They don’t include information about the content of the communications, or the names, addresses or financial information of parties, according to government filings in the Washington case.
The board said the U.S. justification for the phone records collection under Section 215 of the Patriot Act “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.”
Ed Black, president and chief executive officer of the Computer and Communications Industry Association, a Washington-based trade group that represents phone and Internet companies, said the board’s report will help generate support for limits on the government’s ability to collect bulk phone records and for more transparency for government spy programs.
“It’s clear that momentum is building and more and more people are coming to appreciate how truly threatening and intrusive some of these bulk collection programs can be,” Black said in an interview.
The bombshell of the report’s central conclusion may explain why Obama decided to announce his proposals on Jan. 17, before the panel’s report was made public. Obama defended U.S. electronic spying as a bulwark against terrorism.
He proposed changing aspects of the phone metadata program, which may require a divided Congress to sort out details such as whether the government, the phone companies or an unspecified third party should retain the data.
Democratic Senator Patrick Leahy of Vermont, the chairman of the Judiciary Committee and a critic of the NSA programs, said in a statement the report “reaffirms” the conclusion of critics that the program “has not been critical to our national security, is not worth the intrusion on Americans’ privacy, and should be shut down immediately.”
Senator Dianne Feinstein, a California Democrat and chairman of the intelligence committee, has defended the collection of bulk phone records as necessary to stop terrorism and vowed to fight efforts to end it.
Representative Mike Rogers, a Michigan Republican and chairman of the House intelligence committee, who has been supportive of the surveillance tools, seized on lack of unanimity on the board in an e-mailed statement today.
“In 38 times over the past seven years, 17 federal judges have examined this issue and found the telephone metadata program to be legal, concluding this program complies with both the statutory text and with the U.S. Constitution,” Rogers said. “I don’t believe the Board should go outside its expertise to opine on the effectiveness of counterterrorism programs.”
House Judiciary Committee Chairman Bob Goodlatte, a Virginia Republican, said his panel plans to hold hearings soon to review the recommendations made by Obama, a separate presidential review board and the privacy panel.
The privacy panel, created by Congress in 2007 but only operational last year, was led by David Medine, a Federal Trade Commission official in President Bill Clinton’s administration. Medine agreed with the findings along with retired appeals court Judge Patricia M. Wald, and Dempsey, a civil liberties advocate who specializes in technology issues.
Internet companies such as Google Inc., Yahoo! Inc., and Facebook Inc., which have pushed for more transparency about government court requests for e-mail and other content from their customers, should be able to “voluntarily disclose certain statistical information,” the panel’s report said. “In addition, the government should publicly disclose more detailed statistics to provide a more complete picture of government surveillance operations.”
The most concrete and immediate change announced by Obama is that NSA analysts must get judicial approval for queries of the metadata records. In addition, the government can no longer access records that go beyond two persons removed from the query the government makes.
Obama ordered Attorney General Eric Holder and intelligence officials to develop a plan within 60 days for storing bulk telephone records outside of government custody, one of the most contentious issues arising from Snowden’s disclosures.
Phone companies, such as Verizon and AT&T, have resisted being required to retain metadata for the government because of the potential cost and legal exposure. The privacy board recommended against creating a data-retention mandate on the companies. Another entity capable of retaining the records doesn’t yet exist.
“It sounds to some people like an easy out but it’s not an easy out,” Dempsey said.