Federal civil liberties agency calls NSA tactic unlawful
Mass collection of Americans’ phone call records by the National Security Agency is illegal and should be abandoned, according to a detailed legal and operational review of the program by an independent congressional review board.
In its first major act, the Privacy and Civil Liberties Oversight Board, set up as an independent agency in 2007 but only recently fully operational, released a 238-page report on the NSA program on Thursday.
The board examined the legal foundation for the NSA metadata program that collects billions of records on time, duration and phone numbers called. The practice, it found, was a clear threat to American civil liberties and of “limited value” with no significant impact on curbing terrorist plots.
The legal foundation for the program, Section 215 of the USA Patriot Act, was weak and “does not provide an adequate basis to support this program,” the board reported.
Moreover, even in the dozen cases examined by the board in which the metadata linked contacts to a terrorism suspect, most benefits were modest and “limited to corroborating information that was obtained independently by the FBI,” the board report found.
“Cessation of the program would eliminate the privacy and civil liberties concerns associated with bulk collection without unduly hampering the government’s efforts, while ensuring that any governmental requests for telephone calling records are tailored to the needs of specific investigations,” the report concluded.
The findings go further than the conclusions of a separate review panel appointed by President Obama, which released its report last month, or the president himself in a speech on Jan. 17. Both determined the program could be continued with third parties holding the data separately from the NSA and subject to tighter search restrictions.
Just modifying the program was not enough, the board concluded.
“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 report stated. “Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights.”
The board’s finding on the program’s legality was a split decision. Two of the oversight board’s five members dissented, saying the program could continue if further protections for civil liberties were adopted.
The two dissenters were Justice Department employees under President George W. Bush, Rachel Brand and Elisebeth Collins Cook.
The three who called for a halt to the NSA program include a Federal Trade Commission official during the Clinton administration, Chairman David Medine; a retired federal appeals court judge appointed by President Carter, Patricia Wald; and a policy expert with the think tank Center for Democracy & Technology, James Dempsey.