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| NSA's mass phone data collection is illegal, says government privacy board | NSA's mass phone data collection is illegal, says government privacy board |
| (about 2 hours later) | |
| 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 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, an independent and long-troubled liberties advocate in the executive branch, was due 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 recommendations of the five-member board, which were not unanimous, amount to the strongest criticism within the US government yet of the highly controversial surveillance program, first disclosed by the Guardian thanks to whistleblower Edward Snowden. They give fresh support to congressional efforts at ending the practice – the main political battleground where the scope of surveillance will be readjusted this year. | The recommendations of the five-member board, which were not unanimous, amount to the strongest criticism within the US government yet of the highly controversial surveillance program, first disclosed by the Guardian thanks to whistleblower Edward Snowden. They give fresh support to congressional efforts at ending the practice – the main political battleground where the scope of surveillance will be readjusted this year. |
| According to advance copies of the report, obtained by the Washington Post and the New York Times, the privacy board also bolstered assessments by a federal judge and Obama’s own surveillance advisory board that the mass phone data collection was marginally helpful to US counterterrorism at best. | |
| The board went a step further than Judge Richard Leon and the White House advisory group, assessing the bulk metadata collection did not add value in discovering terrorist plots – the central rationale offered by the NSA and affirmed by Obama in his speech last week. | The board went a step further than Judge Richard Leon and the White House advisory group, assessing the bulk metadata collection did not add value in discovering terrorist plots – the central rationale offered by the NSA and affirmed by Obama in his speech last week. |
| “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,” the privacy board is reported to conclude. | |
| “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.” | “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.” |
| Obama endorsed moving the bulk phone records collection out of the NSA’s hands and into those of a private entity, whose contours he left undefined in his Friday speech, his most fulsome remarks on the surveillance to date. | Obama endorsed moving the bulk phone records collection out of the NSA’s hands and into those of a private entity, whose contours he left undefined in his Friday speech, his most fulsome remarks on the surveillance to date. |
| But Obama accepted the intelligence community’s highly contested rationale that bulk phone records collection was necessary in order for the government to detect domestic connections to terrorism. | But Obama accepted the intelligence community’s highly contested rationale that bulk phone records collection was necessary in order for the government to detect domestic connections to terrorism. |
| “I believe it is important that the capability that this program is designed to meet is preserved,” Obama said. | “I believe it is important that the capability that this program is designed to meet is preserved,” Obama said. |
| The privacy board, 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. | |
| Under the privacy board's reported recommendation, federal agencies would be able to obtain phone and other records under court orders in cases containing an individualized suspicion of wrongdoing. But there would be no storehouse, private or public, of telephone data beyond what the phone companies keep in the course of their normal business activities. | |
| That recommendation, which goes further than the one issued by Obama’s surveillance advisory board, bolsters a bipartisan bill in the House and Senate, called the USA Freedom Act, which aims to decisively end bulk domestic data collection. | That recommendation, which goes further than the one issued by Obama’s surveillance advisory board, bolsters a bipartisan bill in the House and Senate, called the USA Freedom Act, which aims to decisively end bulk domestic data collection. |
| But the privacy board assessment drew its own rebuke from Representative Mike Rogers of Michigan, a former FBI agent and chairman of the House intelligence committee. | |
| “I am disappointed that three members of the board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” Rogers said in a pre-dawn statement that castigated the PCLOB for going “outside its expertise” in criticizing the utility of the bulk phone data collection. | “I am disappointed that three members of the board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed,” Rogers said in a pre-dawn statement that castigated the PCLOB for going “outside its expertise” in criticizing the utility of the bulk phone data collection. |
| “As those of us with law enforcement experience know, successful investigations use all available tools—there often is no ‘silver bullet’ that alone thwarts a plot,” Rogers said. | “As those of us with law enforcement experience know, successful investigations use all available tools—there often is no ‘silver bullet’ that alone thwarts a plot,” Rogers said. |
| The White House did not have an initial reaction. | The White House did not have an initial reaction. |
| 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. | 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 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 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 board found that such widespread and suspicionless data collection could have a “chilling effect” on Americans’ constitutional rights. Its conclusion echoed Senator Ron Wyden, an Oregon Democrat on the intelligence committee, who has likened the metadata collection to a “human relations database". | The board found that such widespread and suspicionless data collection could have a “chilling effect” on Americans’ constitutional rights. Its conclusion echoed Senator Ron Wyden, an Oregon Democrat on the intelligence committee, who has likened the metadata collection to a “human relations database". |
| 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. | 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. |
| It also amounts to the first major test of the board, created in 2004 as a post-9/11 reform. A decade’s worth of problems with independence, member vacancies and other issues meant the PCLOB did not functionally operate until 2013, when it was unexpectedly confronted by the Snowden revelations. | It also amounts to the first major test of the board, created in 2004 as a post-9/11 reform. A decade’s worth of problems with independence, member vacancies and other issues meant the PCLOB did not functionally operate until 2013, when it was unexpectedly confronted by the Snowden revelations. |
| Chairman Medine told the Guardian on Thursday that he felt the privacy board rose to the challenge, even though Obama’s speech preceded its own report, a White House decision that raised eyebrows in the civil liberties community. | |
| “I believe we’ve risen to the task, and are demonstrating both in the United States and around the world that the United States has a vigorous oversight body that will take a close look at these programs, have full access to them, and will be able to advise whether the programs do strike the right balance,” Medine said. | “I believe we’ve risen to the task, and are demonstrating both in the United States and around the world that the United States has a vigorous oversight body that will take a close look at these programs, have full access to them, and will be able to advise whether the programs do strike the right balance,” Medine said. |