Watchdog Report Says N.S.A. Program Is Illegal and Should End
By CHARLIE SAVAGE, The New York Times
JAN. 23, 2014
The program “lacks a viable legal foundation under Section 215, 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,” the report said. “As a result, the board recommends that the government end the program.”
While a majority of the five-member board embraced that conclusion, two members dissented from the view that the program was illegal. But the panel was united in 10 other recommendations, including deleting raw phone records after three years instead of five and tightening access to search results.
The report also sheds light on the history of the once-secret bulk collection program. It contains the first official acknowledgment that the Foreign Intelligence Surveillance Court produced no judicial opinion detailing its legal rationale for the program until last August, even though it had been issuing orders to phone companies for the records and to the N.S.A. for how it could handle them since May 2006.
“It may have been a laudable goal for the executive branch to bring this program under the supervision” of the court, the report says. “Ultimately, however, that effort represents an unsustainable attempt to shoehorn a pre-existing surveillance program into the text of a statute with which it is not compatible.”
The report also scrutinizes in detail a handful of investigations in which the program was used, finding “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
Still, in her dissent, Ms. Cook criticized judging the program’s worth based only on whether it had stopped an attack to date. It also has value as a tool that can allow investigators to “triage” threats and provide “peace of mind” if it uncovers no domestic links to a newly discovered terrorism suspect, she wrote.
NSA’s mass phone data collection is illegal, says government privacy board
Spencer Ackerman, The Guardian
Thursday 23 January 2014 08.35 EST
The US government’s privacy board has sharply rebuked President Barack Obama over the National Security Agency’s mass collection of American phone data, saying the program defended by Obama last week was illegal and ought to be shut down.
The Privacy and Civil Liberties Oversight Board (PCLOB), an independent and long-troubled liberties advocate in the executive branch, is to issue a report on Thursday afternoon that concludes the NSA’s collection of every US phone record on a daily basis violates the legal restrictions of the statute cited to authorize it, section 215 of the Patriot Act.
The PCLOB, which briefed Obama on its findings before his speech last week, reportedly recommends instead that the bulk collection ought to be ended outright, owing to its assessed lack of necessity and dubious legality.
Two of the board members, Rachel L Brand and Elisebeth Collins Cook, both lawyers in the George W Bush-era Justice Department, dissented on the finding that the bulk phone data collection was illegal.
The three other members – chairman David Medine, retired federal judge Patricia Wald, and civil liberties advocate James X. Dempsey – rejected the government’s argument, reaffirmed for years by a secret surveillance court, that the mass phone records collection was justified under a section of the Patriot Act that permits the government to amass records “relevant” to a terrorism inquiry.
“The approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations,” the three-member majority is reported to have found.
The PCLOB is not finished with its assessment of NSA surveillance. It plans in the coming weeks to issue another report evaluating the NSA’s collection of bulk foreign Internet communications, which have included those with Americans “incidentally” collected.
Independent review board says NSA phone data program is illegal and should end
By Ellen Nakashima, Washington Post
Thursday, January 23, 8:29 AM
“We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation,” said the report, a copy of which was obtained by The Washington Post. “Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
(T)he board found that it is impossible that all the records collected – billions daily – could be relevant to a single investigation “without redefining that word in a manner that is circular, unlimited in scope.” Moreover, instead of compelling phone companies to turn over records already in their possession, the program requires them to furnish newly generated call data on a daily basis. “This is an approach lacking foundation in the statute,” the report said.
The report concluded that the NSA collection raises “constitutional concerns” with regard to U.S. citizens’ rights of speech, association and privacy. “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,” it said. “Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights.”
In its assessment of the program’s value, the board scrutinized 12 terrorism cases cited by the intelligence community that involved information obtained through the Section 215 program. Even in cases where the data related to contacts of a known terrorism suspect, in nearly all of them the benefits were minimal–“generally limited to corroborating information that was obtained independently by the FBI,” the report said.
The board rejected the contention made by officials from Obama on down that the program was necessary to address a gap arising from a failure to detect an al Qaeda terrorist in the United States, Khalid al-Mihdhar, prior to the 2001 attacks. Mihdhar was in phone contact with a safehouse in Yemen, and though the NSA had intercepted the calls, it did not realize at the time that Mihdhar was calling from San Diego.
“The failure to identify Mihdhar’s presence in the United States stemmed primarily from a lack of information sharing among federal agencies, not of a lack of surveillance capabilities,” the report said, noting that in early 2000 the CIA knew Mihdhar had a visa enabling him to enter the United States but did not advise the FBI or watchlist him. “…This was a failure to connect the dots, not a failure to connect enough dots.”
Second, the report said, the government need not have collected the entire nation’s calling records to identify the San Diego number from which Mihdhar made his calls. It asserted that the government could have used existing legal authorities to request from U.S. phone companies the records of any calls made to or from the Yemen number. “Doing so could have identified the San Diego number on the other end of the calls,” though, it noted, the speed of the carriers’ responses likely would vary.
The board also stated that the program played no role in disrupting the 2009 plot to bomb the New York City subway. That case is often cited in discussions of the program’s utility.
“The Board believes that the Section 215 program has contributed only minimal value in combating terrorism beyond what the government already achieves through these and other alternative means,” the report said. “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.”
NSA’s Spying on Phone Calls Illegal: U.S. Privacy Board
By Margaret Talev and Chris Strohm, Bloomberg News
The bombshell nature of the report’s central conclusion may explain why Obama, after meeting with the board on its planned recommendations weeks ago, decided to announce his proposals on Jan. 17. Obama defended U.S. electronic spying as a bulwark against terrorism. He proposed changing aspects of the phone metadata program, which may require Congress to sort out details such as whether the government, the phone companies or an unidentified third party should retain the data.
Obama had deferred decisions regarding the NSA’s Internet data collection to Congress and a new panel expected to be appointed.
Members of the privacy board briefed Obama on their planned recommendations ahead of his Jan. 17 announcement. The recommendations from the bipartisan, independent agency housed in the executive branch also follows a December report by a separate, independent review panel appointed by the president.
Obama said he would require judicial review of requests to query phone call databases and ordered the Justice Department and intelligence officials to devise a way to take storage of that data out of the government’s hands.
He left other steps to limit surveillance up to a divided Congress, meaning that other changes may be months away if they are adopted at all.
Obama gave Attorney General Eric Holder and intelligence officials 60 days to develop a plan 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 telephone metadata for the government because of the potential cost and legal exposure. An entity to take on that role doesn’t yet exist. The administration plans to deliver a proposal on data storage to Congress by the end of March.