(Bloomberg ) The U.S. National Security Agency is illegally collecting phone call records from millions of Americans and the program should be stopped, a federal privacy board said in a report issued today.
The five-member Privacy and Civil Liberties Oversight Board, created by Congress to protect privacy under post-Sept. 11 anti-terrorism laws, said in a 238-page report that the program has provided only "minimal" help to the U.S. in thwarting other terrorist attacks.
This panel has no authority to change the programs and President Barack Obama last week presented his own plan without waiting for its report. Obama said he would address legal and privacy issues raised by NSA surveillance while continuing NSA collection and use of bulk phone records.
The board's conclusions present a public relations challenge for a White House under pressure from phone and Internet companies, foreign governments and civil libertarians after disclosures by former government contractor Edward Snowden of electronic spying by the NSA.
Big Data Meets Big Surveillance
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 legality of collecting phone data from such carriers as Verizon Communications Inc. (VZ) and AT&T Inc. may diminish the impact of the report and highlights the complexities of balancing security and democratic freedoms.
Obama and his advisers met with board members "multiple times" and their recommendations were taken into account in the administration's review, Caitlin Hayden, spokeswoman for the White House National Security Council, said in an e-mail.
"We disagree with the board's analysis on the legality" of the telephone metadata program, she said. Based on federal court rulings, "the administration believes that the program is lawful."
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."
"As a result, the board recommends that the government end the program," the report said.
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.
Democratic Senator Patrick Leahy of Vermont, the chairman of the judiciary committee and a critic of the NSA programs, said the finding will add to growing support for limiting government surveillance.
"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 in a statement.
Three of the five privacy board members agreed with the legal analysis that the NSA's phone records collection is illegal, while two other panelists said the board should limit its review to whether the program violates privacy and civil liberties. The dissenters served in President George W. Bush's administration. All the members were appointed by Obama and confirmed by the Democratic-controlled Senate.
Representative Mike Rogers, a Michigan Republican and chairman of the House intelligence committee, who has been supportive of the surveillance tools, seized on that disagreement 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."
The panel's findings were reported earlier by the New York Times and the Washington Post.
Internet companies such as Google Inc. (GOOG), 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 report said. "In addition, the government should publicly disclose more detailed statistics to provide a more complete picture of government surveillance operations."
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.
The privacy panel, created by Congress in 2007 but only operational last year, is led by David Medine, a former Federal Trade Commission official in former President Bill Clinton's administration. Medine agreed with the findings along with retired appeals court Judge Patricia M. Wald, and James X. Dempsey, a civil liberties advocate who specializes in technology issues.
The two members who disagreed with the legal analysis are Washington attorneys Rachel Brand and Elisebeth Collins Cook.
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.
Obama called for the creation of an outside panel of advocates to weigh in on new and major privacy issues before the Foreign Intelligence Surveillance Court.
The most concrete and immediate changes announced by Obama will require judicial review 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.
Under the president's plan, the U.S. won't monitor the communications of leaders of close allies unless there is a compelling national security interest while that leaves loopholes for the U.S. government to continue its spying abroad.