Civil Liberties Board Says NSA Spying Is Illegal

Last week, President Obama announced a number of reforms to how the NSA conducts its business. Chief among those reforms was changing how the agency collects bulk cellphone metadata. Some felt that th...
Civil Liberties Board Says NSA Spying Is Illegal
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  • Last week, President Obama announced a number of reforms to how the NSA conducts its business. Chief among those reforms was changing how the agency collects bulk cellphone metadata. Some felt that the program should be ended immediately though, and the President’s own civil liberties board couldn’t agree more.

    The Privacy and Civil Liberties Oversight Board published a 238-page document today detailing their opinion on the NSA’s collection of bulk telephone metadata. In stark contrast to just about everybody else in the executive branch, the board concluded in a 3-2 decision that it is illegal and should be ended immediately.

    So, how did the Board come about to this conclusion? In the executive summary of the document, the board points out that Section 215 of the Patriot Act only allows “the FBI to acquire records that a business has in its possession as part of an FBI investigation, when those records are relevant to the investigation.” The current interpretation of Section 215 that allows the NSA to collect the phone records of every America “bears almost no resemblance to that description,” according to the board.

    The Board then breaks down how the NSA’s actions goes beyond what Section 215 allows in four parts:

    First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk – potentially encompassing all telephone calling records across the nation – they cannot be regarded as “relevant” to any FBI investigation as required by the statute without redefining the world relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) – an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, the statute permits only the FBI to obtain items for use in its investigation; it does not authorize the NSA to collect anything.

    If that wasn’t enough, the Board also says that Section 215 violates the Electronic Communications Privacy Act, or ECPA.

    “In addition, we conclude that the program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing consumer records with the government except in response to specific enumerated circumstances, which do not include Section 215 orders.”

    Oh, but the trashing of Section 215 doesn’t stop there. A bit further into the summary, the Board says that the common defense of the bulk metadata collection program (i.e. it stops terrorism) doesn’t hold up in the face of reality:

    “…we conclude that the Section 215 program has shown minimal value in safeguarding the nation from terrorism. Based on information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. 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. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program.”

    Despite saying that it has never directly contributed to the foiling of a terrorist plot, the Board plays devil’s advocate for a bit by saying that the bulk metadata collection program may help investigators in two ways. The first is that the program may offer “additional leads regarding the contacts of terrorism suspects already known to investigators. The second “can help investigators confirm suspicions about the target of an inquiry.” Despite this, the Board feels that the bulk metadata collection program “largely duplicates the FBI’s own information gathering efforts.” In other words, it’s redundant and contributes nothing of value.

    As for the privacy of Americans, the Board finds that the collection of metadata “has a significant and detrimental effect on individual privacy.” It fears that this could lead to “mission creep” or the use of personal information to “harass, blackmail, or intimidate” individuals or groups.

    In a similar vein, the Board feels that the bulk metadata collection program will have a “chilling effect on the free exercise of speech and association.” In other words, the program “hinders the ability of advocacy organizations to communicate confidentiality with members, donors, legislators, whistleblowers, members of the public, and others.”

    Moving onto the FISA court, the Board concludes that all hearings are stacked in the government favor due to non-governmental parties not being allowed to testify before said court. That’s why the Board suggests three specific reforms to the FISA court that would allow the public to challenge the government on surveillance matters:

  • Creation of a panel of private attorneys, Special Advocates, who can be brought into cases involving novel and significant issues by FISA court judges.
  • Development of a process facilitating appellate review of such decisions.
  • Providing increased opportunity for the FISC to receive technical assistance and legal input from outside parties.
  • Finally, the Board takes on the issue of transparency. As you would expect, it acknowledges the government’s position that there should be a line between secrecy and transparency. The board diverges, however, in its opinion that the government is doing a pretty bad job of keeping its electorate informed. Its main argument is that it’s possible to allow public debate on classified programs while still keeping them classified. In other words, the government should at least acknowledge the existence of its surveillance programs and collect feedback from the public.

    So, where do we go from here? Well, the Privacy and Civil Liberties Oversight Board doesn’t really hold any power. They report directly to the President and are a part of the executive branch, but their opinion is just one of many. The President already laid out his opinion on the matter last week by stating that the bulk data collection should continue.

    Despite its lack of power, the Board’s recommendations will add some much needed ammunition to the arguments of those who are opposed to the NSA. Sen. Patrick Leahy and others have argued for the past few months that the bulk data collection program needs to end and this report will only bolster those arguments.

    Real reform may not come for a while, but the Board’s recommendations is the first step in a road that may very well lead to an America that’s not constantly surveilled by the very people sworn to protect its citizens.

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